NSW Department of Industry (for Fisheries NSW) v Connolly

resented File Number(s): 2018/345104 2018/345110 2018/345124 2018/356996 2018/357002 2018/357004 2018/357016 2018/357020 2018/357021 2018/357024 Publication restriction: Nil

Judgment

1. This is a case about the right to fish. The accused is an Aboriginal person who has lived all of his life on the NSW South Coast. He was observed by NSW Fisheries Officers to have caught and later sold silver trevally by the means of ocean hauling fishing using a net. He has been charged with a number of offences. He has challenged those charges claiming an inherent right to fish based upon the traditions and customs of his people.
2. The accused, Frank James Connolly, also known by his indigenous name, 'Jerrinja, Wodi Wodi' of the Yuin Nation (Frank), was involved in ocean hauling activities using a net to catch silver trevally in November 2016 and has since been charged with several fishing offences, specifically: Sequence 1 - unlawfully use net for taking fish contrary to the provisions of section 24(1) of the Fisheries Management Act 1994 (NSW) (FM Act). Sequence 3 - possess fish illegally taken contrary to the provisions of section 20(3)(b) and offence pursuant to 35(1) of the FM Act. Sequence 4 - take fish for sale in circumstances where his authorisation was not appropriate contrary to the provisions of section 102(1) of the FM Act. Sequence 5 - unlawfully use net for taking fish contrary to the provisions of section 24(1) of the FM Act. Sequence 6 - unlawfully use net for taking fish contrary to the provisions of section 24(1) of the FM Act. Sequence 7 - unlawfully use net for taking fish contrary to the provisions of section 24(1) of the FM Act. Sequence 9 Harm or attempt to harm animal in a sanctuary zone contrary to the provisions of section 41 of the Marine Estate Management Act 2014 (NSW) (MEM Act). Sequence 10 - Harm or attempt to harm animal in a sanctuary zone contrary to the provisions of section 41 of the MEM Act. Sequence 11 - Harm or attempt to harm animal in a sanctuary zone contrary to the provisions of section 41 of the MEM Act. Sequence 12 - possess fish illegally taken contrary to the provisions of section 20(3)(b) and offence pursuant to 35(1) of the FM Act.
3. The offending conduct is alleged to have occurred on two separate occasions, namely, the 11th and the 21st November 2016, five years prior to the hearing. Sequences 1, 3, 5, 6, 7 and 12 carry a maximum penalty of $22,000 in fines and up to 6 months imprisonment. Sequences 4, 9, 10 and 11 are fine only offences which carry a maximum penalty of $55,000 with the exception of sequence 4 which carries a maximum penalty of $110,000.
4. Section 278 of the FM Act prescribes that the time within which proceedings may be commenced is to be not later than 2 years after the date the alleged offence was committed. Proceedings were commenced against the accused on 9 November 2018. There was no explanation offered to explain the delay.
5. Frank entered pleas of not guilty to, and has defended each of, the charges brought against him which were all heard before me at Nowra over two days from the 16th to 17th November 2021 inclusive. At the conclusion of the hearing I reserved my decision.
6. On the first day of the hearing, Frank applied for an adjournment on the basis that he had not been able to secure legal representation. The accused had, so far as I am aware, foreshadowed to the registry late on the day prior to the hearing that he would make an adjournment application.
7. On the first day and after hearing addresses both from the accused and Counsel for the prosecution on the application to adjourn, I was not satisfied that the accused had established proper grounds for an adjournment, noting that a number of witnesses for the prosecution, represented by counsel and an instructing solicitor, had travelled to court for the hearing. Frank had been legally represented on earlier mentions but was self-represented on the first day of hearing. I note from a document signed by the accused and dated 5 August 2019 and placed with the court papers that the accused, in seeking a summary dismissal of the proceedings, asserted, among many things, that he was unrepresented and had been unsuccessful in obtaining legal advice and at that time was therefore unable to enter a plea to the charges. I made it clear that I was aware that the delay in resolving this matter was cause for concern by the Chief Magistrate. After speaking with a lawyer named by the accused as someone he had spoken to it was established that the legal practitioner had not confirmed whether she would act for the accused in the matter and that he had been unwell for a period prior to the hearing. Mr El Hage also understood the accused had literacy issues.
8. During the two day hearing, the court heard from five witnesses and received seven exhibits into evidence. At the end of the hearing I reserved my decision.
9. I have had the benefit of detailed and comprehensive written submissions from Mr El-Hage which have been of enormous assistance in grappling with the plethora of complex and intricate legislation and Regulations together with the growing body of jurisprudence governing this area of the law.
10. In the interests of time and for ease of reference persons referred to in this judgment will, after having been initially identified, thereafter be referred to using their first name, their surname or their role in these proceedings as the case may be.

Directions

1. As a magistrate, I am the trier of fact. As such, there are certain general directions that I must take into account as well as specific directions in this case. In accordance with the provisions of section 133(2) of the Criminal Procedure Act 1986 (NSW) and the principles distilled from the judgment of the High Court in Fleming v The Queen [1] , I am required to explain the reasoning process linking those matters so as to make a finding on the facts underlying the charges to which the accused has entered pleas of not guilty. This is to ensure that an accused person receives a fair trial according to law. I direct myself as follows and I will take these directions into account: 1. In a trial by judge alone, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. 2. I must bring an open, unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. 3. I may use my common sense, experience and wisdom in assessing the evidence. I must then deliver my verdict according to that evidence. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will. 4. The prosecution bears the onus of proving the guilt of the accused. The accused is presumed by law to be innocent of the offences for which he is charged and the accused does not have to prove that he did not commit the offences charged. 5. If the accused does adduce any evidence (which he has done) which is consistent with his innocence, he does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant; otherwise the prosecution will not have proved its case. 6. The standard of proof for the prosecution is proof beyond reasonable doubt. The prosecution does not have to prove everything about which evidence has been given beyond reasonable doubt, but it must prove the elements of the offence beyond reasonable doubt before I can be satisfied of the guilt of the accused beyond reasonable doubt. 7. In a criminal trial, it is not a question of my making a choice between the evidence and submissions of the prosecution and the defence. I have directed myself that I do not have to believe that the accused is telling the truth before he is entitled to be found not guilty. If, however, after considering the evidence of the accused and the witnesses called on his behalf, I find that the accused's evidence should not be accepted, I must be careful not to jump from that view to an automatic conclusion of guilt. If I find the accused's evidence unconvincing, I must set it to one side and go back to the rest of the evidence and ask myself whether I am, on consideration of such evidence as I do accept, satisfied, beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question. 8. To decide what the facts are in this case, I am required to assess the evidence. It is part of my function to decide how much or how little of the testimony of any witness I believe or rely upon. That, of course, also extends to inferences I would draw from documents. I may believe all or some of the witness's evidence. It is also for me to decide what weight should be attached to any particular evidence; that is the extent to which the evidence helps me to determine the relevant issues. 9. In assessing the evidence of a witness, some matters which may concern me include credibility and reliability. It is for me to judge whether the witness told the truth and whether they correctly recorded the facts about which they gave evidence. While I may take into account the manner in which a witness gave evidence, I should be careful when doing so. Giving evidence in a trial is not common and may be a stressful experience. People react and appear differently. Witnesses come from many different backgrounds and have different abilities, values and life experiences. There are too many variables to make the manner in which a witness gives evidence the only or even the most important, factor in my decision. 10. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do an act which the prosecution submits constitutes the alleged crime charged or becomes a fact in the issue for me to deduce other facts in issue. My function also extends to drawing reasonable inferences or conclusions from those facts that I find established. 11. In relying upon circumstantial evidence, the prosecution asks me to find certain basic facts and then from those facts, to draw a conclusion as to the existence of a further fact or for facts. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. 12. The correct approach is to determine what facts I find established by the evidence. I should consider all of those facts taken together as a whole, and ask whether I can conclude, from those facts, that the accused is guilty of the offences charged. If such a conclusion does not reasonably arise, the prosecution circumstantial case fails because I would not be satisfied beyond reasonable doubt. But if I find it such a conclusion is a reasonable one to draw, based on a combination of the established facts, before I can convict the accused, I must consider whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion that the prosecution says is established. 13. The drawing of a conclusion from one set of established facts to find another fact is proved, involves a logical and rational process of reasoning. I must not base my conclusion on mere speculation, conjecture or supposition. But if there is any other reasonable conclusion, i.e. another rational inference that is open on those facts that is inconsistent with the conclusion the prosecution asks me to find, then the prosecution circumstantial case will have failed as the prosecution's burden requires it to exclude all reasonable hypotheses consistent with innocence. 14. The next specific direction must give myself relates to the accused being charged with more than one charge contained in the court attendance notice. I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved the essential elements of that particular charge. If I have a reasonable doubt concerning the truthfulness or reliability of the evidence in relation to one of the charges, whether by reference to issues of demeanour of witnesses or any for any other reason, that must be taken into account by me in assessing the truthfulness or reliability of evidence generally. It may occur, in respect of one of the charges, that I am not sufficiently confident of the evidence relied upon by the prosecution to convict in respect of that charge. A situation may arise where, in relation to a particular charge, although I am inclined to think that the evidence is such that what is alleged by the prosecution probably happened in the manner alleged, I have some reasonable doubt about an element or elements of that particular offence. If that occurs, of course, I would find the accused not guilty in relation to that charge. That does not necessarily mean, however, that I cannot convict of any other charge. I have to consider why I had some reasonable doubt about that part of the prosecution evidence relied upon as proving the charge and consider whether it affects the way I assess the rest of the evidence, that is, as I doubt about that aspect of the evidence do I also have a reasonable doubt about the part of the evidence relevant to the other charges. 15. In this case the accused participated in a record of interview with Fisheries Officers which was then tendered by the prosecution. He also gave evidence on oath. He was not required to do either. He could have elected not to participate in the record of interview or to give evidence. By doing so, he became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of another witness in the trial because he is the accused and his evidence must be considered in the same way as the evidence of other witnesses. Subject to what I say later in this judgment about the defences raised in these proceedings, by giving evidence however he did not assume any onus to prove anything at the trial.

Prosecution case for sequences 1, 3 and 4 - alleged offending on 11 November 2016

1. I set out below a summary of the prosecution case for the purposes of sequences 1, 3 and 4 the offending for which is alleged to have occurred on 11 November 2016.
2. At about 9.10am on 11th November 2016 Fisheries Officer (FO) Martin Kick (Kick) received certain intelligence that ocean haul netting was taking place on Long Beach, Beecroft Peninsula NSW from which he formed a view that Frank was engaged in that ocean haul netting. He spoke to District Fisheries Officer (DFO) Mark Fackerell (Fackerell) who was then undertaking a vessel patrol together with FO Sue Brown (Brown), and informed him of the suspected ocean haul netting. Armed with that intelligence, Fackerell and Brown proceeded to Long Beach in their Fisheries vessel arriving about 42 minutes later at waters adjacent to Long Beach and about 300 metres offshore from Long Beach.
3. With the assistance of binoculars, Fackerell observed a white tray-back four wheel drive vehicle on the beach with a number of blue fish boxes in the tray of the vehicle. Three men were seen on the beach, of whom Frank was one, as well as a light blue row boat at the edge of the water. The three men loaded the boat into a boat trailer. Fackerell moved north west of his surveillance position.
4. The boat was observed to have been rowed out approximately 50 metres from the beach in an arc from south to north along the beach. Nets were deployed from the boat in a manner consistent with ocean beach hauling. Fackerell took video footage which recorded images of Frank and the others with him hauling a net by hand into the beach.
5. About 15 minutes later Fackerell exited the Fisheries vessel at the rock platform at the southern end of Long Beach walking to the carpark to meet Kick who arrived not long afterwards. At about 10.54am both Fackerell and Kick observed Frank and the others drive their vehicle towing the boat for a short distance before launching the boat into the water. The boat was rowed into the ocean waters heading in a northerly direction parallel to the beach for a distance of 60 metres during which a net was deployed from the stern before the boat returned to shore. One of the men at the northern end of the net retrieved it by hand while the other two retrieved the net at the other end by hand.

Evidence for the prosecution case for sequences 5-7, 9-11 and 12 alleged to have occurred on 21 November 2016

1. For the purposes of sequences 5, 6, 7, 9, 10, 11 and 12 the offending which is alleged to have occurred on 21 November 2016, the prosecution case can be briefly paraphrased as set out hereafter.
2. At about 9:07 AM on 21 November 2016 Kick and Fackerell, both in full departmental uniforms, observed the same boat that they had seen on 11 November 2016 being towed at the rear of a four-wheel drive vehicle on Callala Beach Road, Callala Bay whilst conducting a vehicle patrol adjacent to the ocean waters of the Jervis Bay Marine Park. Half an hour later, from a position at Callala Point, Fackerell observed the same vehicle towing the same boat on Hare Bay Beach accompanied by the same vehicle he had seen on 11 November 2016.
3. The vehicles came to a stop shortly thereafter on Hare Bay Beach and the boat was placed into the water and rowed through the waters of the Sanctuary Zone [2] . About three minutes later a hauling net was deployed into the water from the boat and hauled back to shore.
4. Fackerell was joined by DFO Glenn Staples (Staples) whom Fackerell had called earlier at 9:50 AM. From a position approximately 1 km away and using binoculars, Staples observed the two vehicles and eight persons hand hauling a hauling net back to shore. He saw fish being removed from the net and placed onto a boat trailer connected to one of the vehicles. He was later joined by Fackerell and Kick who continued to observe the eight men.
5. The boat was observed by all three fisheries officers being launched at two further locations along Hare Bay Beach around 10:27 AM and 11:23 AM respectively. On each occasion the eight men were observed hauling in a net by hand after which time the boat returned to shore and fish were removed from the net and placed by them in a blue fish bin.
6. Both Kick and Fackerell observed the accused drive past their location at about 12:43 PM in one of the vehicles. Only one of the passengers, Edward Farrell, was known to both officers whilst the others were not.

Evidence for the Accused

1. I now turn to the evidence given by the accused which I have set out in a paraphrased narrative. There does not appear to be a great deal in dispute in the present case. Although there were no agreed facts tendered to the court, it would seem that the accused accepted that his alleged offending conduct was legitimised by virtue of his rights under Native Title.
2. He told the court that he is an indigenous man, is 53 years of age and learned to fish from his father who died in 2013. He had fished in the area since 1965. He said that he took over the fishing business operated by his father in 2009. He also said he held a general fishing licence. His mother, at the time of the alleged offending, was unwell and had assigned control of the business to him. A number of documents were tendered without objection during his evidence [3] .

Issues

1. There are in my view six issues which arise for determination in the present case. I will address each of these in turn as follows.

First Issue - for the purposes of sequences 1, 5, 6 and 7 - was the accused lawfully conducting ocean hauling operations by the use of an ocean hauling net pursuant to his commercial licence?

1. Section 24 of the FM Act relevantly provides: 24 Lawful use of nets or traps (1) A person must not use a net or trap for taking any fish unless its use by the person for taking those fish is declared by the Regulations to be a lawful use of the net or trap. Maximum penalty - (a) in the case of an individual - (i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or (b) in the case of a corporation - (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence. (2) This section does not affect any other prohibition of the use of a net or trap under a fishing closure or other provision of or made under this or any other Act.
2. Accordingly, the elements of each of these offences brought pursuant to section 24 of the FM Act which must be proved beyond reasonable doubt are as follows: 1. the defendant used a net for taking fish (in this instance a hauling net (general-purpose)); 2. the use of the net was not a lawful use under the regulations (including that the defendant did not hold the relevant endorsement); and 3. when the defendant used the net, he was in the waters to which the FM Act applied.

First element

1. Section 4 (1) of the FM Act defines the relevant conduct in relation to the use of the net for "taking fish" as: "take" fish includes - (a) catch or kill fish, or (b) gather or collect fish, or (c) remove fish from any rock or other matter, or attempt to do so.
2. A hauling net is described in Item 2(b)(ii) in the Table to cl 13A of the Ocean Hauling Share Management Plan [4] (the Plan).

Second Element

1. Part 3 of the Fisheries Management (General) Regulation 2010 (NSW) (FMG Regulations) relevantly provided with respect to the lawful uses of nets and other fishing gear in particular circumstances: 21 Lawful use of fishing gear (1) For the purposes of this Part, a person who holds a commercial fishing licence that does not authorise the person to take fish for sale in a restricted fishery or a share management fishery is to be treated, in respect of that fishery, as a person who is not a commercial fisher. (2) Accordingly, despite the other provisions of this Part, it is unlawful for such a person to use a net or other fishing gear for taking any fish in that restricted fishery or share management fishery if the use of that net or gear for taking those fish would, if the person were not a commercial fisher, be unlawful.
2. "Hauling" is defined in regulation 3(1) to include "casting and shooting any net with or without hauling lines".
3. Regulation 23 of the FMG Regulations specifies particular nets that may lawfully be used for the Ocean Hauling Fishery and relevantly provided: 23 Nets used in share management fisheries (1) The nets specified in Column 1 of the Table to this clause may lawfully be used to take fish in the waters of the share management fisheries specified next to the net concerned in Column 2 of the Table to this clause. (2) The description of the net, and its use, in relation to the waters of a share management fishery, must comply with the requirements prescribed by the share management plan for the fishery concerned (including any requirements of a supporting plan that applies to the fishery).
4. The table to regulation 23 includes within the two columns referred to: Hauling net (general purpose) Estuary general Ocean hauling

1. Clause 13A(1) of the Plan specifies that it is lawful for the holder of a hauling net (general purpose) endorsement to use a hauling net for taking fish in the waters specified in the table to that clause (which includes Jervis Bay) if the net complies with clause 13A and the description provided in the table.
2. It is submitted that the effect of regulations 21 and 23 of the FMG Regulations, read together with clause 13A of the Plan, is that: 1. in addition to a commercial license, a person must, amongst other things, hold a hauling net (general purpose) endorsement in order to lawfully be able to take fish from the Ocean Hauling Fishery; and 2. a hauling net (general purpose) may only be used in the Ocean Hauling Fishery by a person who holds a hauling net (general purpose) endorsement and its use must comply with the method of hauling referred to in Clause 13A of the Plan.

Third Element

1. With respect to sequence 1, the offending conduct is alleged to have occurred in the waters of Jervis Bay adjacent to Long Beach, Beecroft Peninsula and thus within waters to which the FM Act applies.
2. With respect to sequences 5 - 7, the offending conduct is alleged to have occurred in the waters of Jervis Bay adjacent to Hare Bay Beach, Beecroft Peninsula and therefore is within waters to which the FM Act applies.
3. It would appear to be uncontroversial and otherwise uncontentious and common ground [5] that the accused's father, also named Frank Connolly (referred to hereafter as Frank Connolly Senior), was the owner of Fishing Business 2217 (the 'Fishing Business') prior to his death in 2013 and which held a number of shares and endorsements referred to in the Fisheries Management (Ocean Hauling Share Management Plan) Regulation 2006 (NSW) as well as permits issued under section 37 of the FM Act (the Permits).
4. The Permits, which were not transferable, authorised Frank Connelly Senior to remove fish from the ocean waters of the Jervis Bay Marine Park at specified locations by the use of a hauling net and expired on 30 June each year being the end of each fishing year.
5. Ownership of the Fishing Business was transferred from the estate of the late Frank Connelly Senior to his widow, Rhonda Connolly, the mother of the accused on 17 August 2016.
6. The accused was granted a commercial fishing license on 7 October 2016 and at the same time was authorised as the nominated fisher for the Fishing Business.
7. The position taken by the prosecution is that pursuant to section 66 of the FM Act, the holder of a commercial fishing license is not authorised to take fish in a Share Management Fishery unless: a. the licensee is the holder of shares in the fishery or is duly nominated by that holder to take fish on behalf of that holder, and b. if the management plan fixes a minimum shareholding to take fish in the fishery that applies to the holder- the holder has not less than the minimum shareholding required, and c. the license is duly endorsed, in accordance with this Division, for the taking of fish in the fishery.
8. The court was also made aware that the Ocean Hauling Fishery, established under Part 3 of the FM Act, is a commercial share management fishery, the management plan for which is contained in the Appendix found within the Fisheries Management (Ocean Hauling Share Management Plan) Regulation 2006 (Ocean Hauling SMP) and consists of the use of a hauling net or 'purse seine' net to take fish from, among other areas, the waters of Jervis Bay. It extends to the use of any net by the method of hauling to take fish from those waters.

Determination of the First Issue

1. On all of the evidence which I do accept I am satisfied, to the requisite standard, that the accused was not lawfully entitled to conduct ocean hauling operations under his commercial fishing licence.

Second Issue - was the accused in possession of fish illegally taken for the purposes of sequences 3 and 12?

1. Section 35 of the FM Act relevantly provides: 35 Possessing fish illegally taken (1) A person who is in possession of fish which were illegally taken is guilty of an offence. Maximum penalty - (a) in the case of an individual - (i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or (b) in the case of a corporation - (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence. (2) It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person could not reasonably have known that the fish had been illegally taken. (3) In this section - "illegally taken" means taken in contravention of a provision of or made under - (a) this Act, or (b) a law of another State or Territory, or of the Commonwealth, relating to fisheries.
2. Accordingly, to prove that the accused committed the offending conduct, the prosecution must establish: 1. the accused possessed fish; and 2. such fish were illegally taken.

First element

1. Section 4(1) defines "possession" as: "possession" of a thing includes having the thing under control at any place, even though some other person has physical possession of the thing.
2. Possession is defined in section 4 of the FM Act as including: "having the thing under control at any place, even though some other person has physical possession of the thing".
3. The definition picks up and incorporates the common law approach to possession.
4. At common law, people have in their possession whatever is, to their knowledge, physically in their custody or under their physical control [6] . A person may have actual possession or constructive possession. A person may also have sole possession or joint possession.
5. "Fish" is defined in section 5.

Second element

1. "Take" fish is defined in section 4(1). "Illegally taken" is defined in section 35(3). The prosecution rely for the purposes of sequence 3 on section 20(3)(b) of the FM Act pursuant to which it is an offence to take fish from waters declared in the Regulations under section 20(2) which provides: (2) The regulations may declare specified waters to be waters in which all or a class of commercial fishing is prohibited absolutely or conditionally.
2. Clause 9(1)(b) of the FMG Regulations provided: 9 Fish and waters protected from commercial fishing (1) For the purposes of section 20(2) of the Act, it is declared that: (a) the waters specified in Schedule 3 are waters in which the class of commercial fishing specified in that Schedule as being a prohibited class of commercial fishing in relation to those waters is prohibited, and (b) all ocean and estuarine waters are waters in which the class of commercial fishing that consists of any commercial fishing activity other than the following is prohibited: (i) a fishing activity referred to in Schedule 1 to the Act,
3. Schedule 1 to the FM Act specifies "Ocean Hauling Fishery" in clause 6B.
4. Insofar as sequence 3 is concerned, the accused is alleged to have engaged in the offending conduct in the waters of Jervis Bay adjacent to Long Beach, Beecroft Peninsula within Region 6 of the Ocean Hauling Fishery.
5. The prosecution assert that the combined effect of clause 13A of the Plan, read in conjunction with regulations 21 and 23 of the FMG Regulations, is that: 1. in addition to a commercial licence, a person must, amongst other things, hold a hauling net (general purpose) endorsement in order to lawfully be able to take fish from the Ocean Hauling Fishery; and 2. a hauling net (general purpose) may only be used in the Ocean Hauling Fishery by a person who holds a hauling net (general purpose) endorsement and its use must comply with the method of hauling set out in clause 13A of the Plan.
6. Accordingly, the prosecution submitted that if the accused did not hold a relevant endorsement at the time the offence referred to in sequence 3 is alleged to have taken place, he would not have lawfully engaged in a fishing activity referred to in Schedule 1 and, in turn would not have been within the 'carve out' referred to in clause 9(1)(b)(i) of the FMG Regulations and would have been in contravention of section 20(3)(b) of the FM Act.

Determination of the second issue

1. On all of the evidence which I do accept, and to which I have referred already in this judgment I am satisfied, beyond reasonable doubt that the accused was in possession of the silver trevally on 11 November 2016.

Third Issue - did the accused hold a duly endorsed commercial fishing licence for the purposes of sequence 4?

1. Section 102 of the FM act relevantly provides: 102 Commercial fishers required to be licensed (1) A person must not take fish for sale from waters to which this Act applies unless the person is authorised to do so by a commercial fishing licence. Maximum penalty - (a) in the case of an individual - (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence, or (b) in the case of a corporation - (i) 2,000 penalty units for a first offence, or (ii) 4,000 penalty units for a second or subsequent offence. (2) This section does not apply to a member of the crew of a boat licensed under Division 2 who takes fish as an employee or agent of the master of the boat. Note - A commercial fishing licence will, under other provisions of this Act, require an endorsement if the holder is to take fish in a share management fishery or in a restricted fishery.
2. In order to prove the offending conduct with respect to sequence 4, the prosecution must establish beyond reasonable doubt: 1. the accused took fish; 2. from waters to which the FM act applies; and 3. The accused was not authorised to do so by a commercial fishing license

First element

1. In relation to the first element reference should be made to the definition of "taking fish' referred to in section 4 (1) of the FM Act.

Second element

1. In relation to the second element, the Ocean Hauling Fishery is regulated by the FM Act and the Plan.
2. The offending conduct is alleged to have occurred in the waters of Jervis Bay adjacent to Long Beach, Beecroft Peninsula which is located within Region 6 referred to as the "upper south coast" lying between the coordinates specified in clause 4 (2) (f) of the Plan.

Third element

1. Section 66 of the FM Act provides: 66 Who may fish in share management fisheries After the commencement of the management plan for a share management fishery, a commercial fishing licence does not authorise a person to take fish in the fishery unless - (a) the licensee is the holder of shares in the fishery or is duly nominated by that holder to take fish on behalf of that holder, and (b) if the management plan fixes a minimum shareholding to take fish in the fishery that applies to the holder - the holder has not less than the minimum shareholding required, and (c) the licence is duly endorsed, in accordance with this Division, for the taking of fish in the fishery.
2. Section 105 of the FM Act relevantly provides: Evidentiary provision The fact that a person holds a commercial fishing licence is evidence that fish taken by the person or in the person's possession were fish taken or in possession for sale.

Determination of the Third issue

1. I am satisfied on all of the evidence which I do accept that at the time of the offending conduct the commercial licence held by the accused did not hold the minimum shareholding required or the endorsements for the taking of fish in the fishery.

Fourth Issue - did the accused take fish while in a sanctuary zone of a marine park for the purposes of sequences 9 - 11 inclusive?

1. Section 41 of the MEM Act relevantly provides: 41 Offences against management Regulations A person is guilty of an offence if the person contravenes a provision of the Regulations referred to in this Division or Division 4, being a contravention that is designated by the Regulations as a serious offence. Maximum penalty - (a) in the case of a corporation, 1,000 penalty units, or (b) in any other case, 500 penalty units.
2. Accordingly, to establish the offending conduct, the prosecution must prove beyond reasonable doubt: 1. that the accused contravened a provision of the Marine Estate Management (Management Rules) Regulation 1999 (NSW) (MEM(MR) Regulations) [7] ; 2. and that such contravention is designated by the Regulations as a serious offence.

First element

1. The offending conduct for sequences 9, 10 and 11 are alleged to have occurred on the waters adjacent to Hare Bay Beach, Beecroft Peninsula which falls within the Hare Bay Sanctuary Zone of the Jervis Bay Marine Park [8] .
2. The definition of animal includes fish [9] . "Harm" in the case of an "animal" is defined to include the taking of the animal [10] . The definition of "take an animal" includes to "(a) catch, capture or kill an animal" or "gather or collect an animal".

Second element

1. For the purposes of section 41 of the MEM Act a contravention of cl. 1.11(1) of the MEM (MR) Regulations is designated as a serious offence.
2. The prosecution rely upon clause 1.11(1)(a) of the MEM(MR) Regulations which relevantly provides: 1.11 Protection of animals, plants and habitat in sanctuary zone (1) A person must not, while in the sanctuary zone of a marine park - (a) harm, or attempt to harm, any animal, or (b) harm, or attempt to harm, any plant, or (c) damage, take or interfere with, or attempt to damage, take or interfere with, any part of the habitat (including soil, sand, shells or other material occurring naturally within the zone), or (d) clean any fish or fishing gear, except with the consent of the relevant Ministers. (2) Consent is only to be given under subclause (1) for research, environmental protection, public health, traditional use or public safety purposes. (3) For the purposes of section 41 of the Act, a contravention of subclause (1) is designated as a serious offence.
3. Jervis Bay Marine Park is, by virtue of Schedule 4 to the Marine Parks Act 1997 (NSW), declared a marine park [11] . The MEM (MR) Regulations set out the management rules for the Jervis Bay Marine Park [12] . The management rules for a Marine Park include sanctuary, habitat protection, general use and special-purpose zones [13] . A sanctuary zone provides for the highest level of protection and provides for a limited range of activities (not including commercial activities [14] .
4. Clause 1.11(1) and (2) provides that a person does not commit the offence under clause 1.11 for anything done with the consent of the relevant Minister. There is no evidence that the accused had any such consent.

Determination of the Fourth Issue

1. I am satisfied on all the evidence that the prosecution have established beyond reasonable doubt that the accused took fish from waters within the Sanctuary zone contrary to the provisions contained within the MEM (MR) Regulations which constitutes therefore a serious offence.

Fifth Issue - was the accused conducting fishing operations under Native Title?

1. European settlement had a devastating and irreversible impact on the First Nation People of this continent. The dispossession of their land, their exposure to new diseases and the imposition of new laws had a crushing effect on their health, culture and way of life without any thought of the repercussions. Without realising it, sovereignty was imposed upon First Nations Peoples.
2. There would appear to be no issue that the accused is an Aboriginal person and a member of the Yuin Nation. Section 3 of the FM Act sets out the objects of the Act, one of which is to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to promote the continuation of Aboriginal cultural fishing.
3. The accused maintains a claimed right to take fish as a native title holder. His evidence was that he is a local from 'Roseby Park' [15] "and learned the trade of fishing with my old man". He has worked as a fisherman there ever since and "was an oyster farmer at Greenwell Point" for over ten years before his father became unwell and then became "a fisherman". He said he "learned the trade"…learned how to spot fish…how to throw nets" from his father "where we was allowed to fish" [16] .
4. He told the court his father had "fished these waters since 1965" and that he had been granted his fishing licence. His evidence was that "I've always known myself a Jerrinja boy from Roseby Park" and likes "being called Jerrinja" [17] .
5. He tendered a number of documents during his evidence as a bundle [18] and made reference in his evidence in chief to selling fish to Banks [19] . One of the documents he tendered was headed "New South Wales Ocean Hauling Commercial Fishers Code of Practice for Hauling Activities" which was marked as "Version November 2009".
6. During cross examination the accused nevertheless asserted he had held that document since 2001 and, as I understand his evidence, it applied to the Jervis Bay Marine Park ever since "my father started fishing in 2001". He continued: "This was always on the tables in Marine Parks out Jervis Bay where as traditional owners of the land and the water, we're entitled to this paper and this is what it means on paragraph 34". Further in cross examination he told the court "All this writing come in at 2001 when the shares come in and the marine park come in".

Determination of the fifth issue

1. The accused failed to provide sufficient evidence to substantiate his claim that his taking of the trevally was the exercise of a traditional native title right. The accused's evidence failed to meet the requirements of section 211. The evidence was not sufficient to establish that the ocean hauling of the trevally was conducted in accordance with the exercise of any legitimate native title right nor was it for the purpose of satisfying personal, domestic or non-commercial communal needs.
2. I find that there is no evidence which would allow me to find that the accused engaged in conduct in a manner consistent with traditional laws and customs designed to recognise and preserve traditional means of living. There was no corroborative evidence adduced by the accused that taking a large quantity of silver trevally for the purpose of sale was consistent with Yuin Nation customs or traditions.

Sixth Issue - Does the defence of honest and reasonable mistake of fact arise?

1. The accused did not raise this issue specifically but I am satisfied from the evidence which he adduced and from replies to questions put to him by fisheries officers that it is an appropriate to address the question.
2. The accused has at all times maintained that his commercial fishing licence allowed him to operate under native title. The defence of honest and reasonable mistake of fact applies only where a mistake of fact is made about an essential factual element of the offence charged. The honest and reasonable, but mistaken belief must be with respect to a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent [31] .
3. The elements necessary to successfully establish the defence were succinctly summarised in Environmental Protection Authority v Unomedical Proprietor Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198 per Pepper J.
4. It is important to distinguish between mistake of fact and mistake of law. In this regard the authority of Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 is instructive. In that matter the respondent held a fishing license under Western Australian legislation. Acting on incorrect information provided to him by a fisheries officer, the defendant fished in an area to which he was not entitled by law to do. On the basis of the information provided to him, he held an honest but mistaken belief that the licence permitted him to fish in that area. The court held unanimously it was a mistake of law and therefore did not afford him the defence. A belief in the lawfulness of one's conduct is a belief about a matter of law and, as such, cannot afford a defence. Likewise a mistake as to the existence of native title is a mistake of law [32] .
5. On all of the evidence which I do accept I am not satisfied that the accused held an honest and reasonable but mistaken belief in a fact or facts going to the elements of the offences for which he is charged. Indeed the accused appears to be relying on a general understanding or assumption about the entitlements and endorsements held under the commercial fishing licence and his belief that his conduct fell within native title so as to comply with the relevant provisions of the NTA.

Verdicts

1. With respect to sequence 1, 5 6, and 7 being charges of unlawfully using a net for taking fish (using a hauling net (general-purpose) for taking fish without an endorsement) contrary to the provisions of section 24 (1) of the FM Act [33] , I find that between 10.00am and 11.30am on 11 November 2016 (sequence 1) and at the relevant times on 21 November 2016 (sequences 5, 6 and 7) the accused, who was then not a holder of a hauling net (general purpose) endorsement, used a net, namely a hauling net (general-purpose) for taking fish which was not declared by the Regulations to be a lawful use.
2. With respect to sequence 3 being a charge of possess fish illegally taken (namely, silver trevally) contrary to the provisions of section 35(1) of the FM Act, I find that at approximately 11.20am on 11 November 2016 the accused possessed fish, namely silver trevally which were taken in contravention of the provisions of section 20(3)(b) of the FM Act [34] .
3. With respect to sequence 4 being a charge of take fish for sale - authorisation not appropriate contrary to the provisions of section 102(1) of the FM Act [35] , I find that the accused between 10.00am and 11.30am on 11 November 2016 took fish for sale from waters to which the FM Act applied, namely, silver trevally, without being authorised to do so by a duly endorsed commercial fishing licence.
4. With respect to sequences 9, 10 and 11 being charges of harming or attempting to harm an animal in a sanctuary zone contrary to the provisions of section 41 of the MEM Act [36] , I find that the accused did harm an animal (fish) in a sanctuary zone of a marine park namely, the Hare Bay Sanctuary Zone of the Jervis Bay Marine Park between 11.23am and 11.35am on 21 November 2016 without the consent of the Minister.
5. With respect to sequence 12 being a charge of possess fish illegally taken contrary to section 24(1) of the FM Act, I find that the accused did possess fish which were illegally taken with a hauling net (general purpose) between 9.50am and 12.20pm on 21 November 2016.
6. Accordingly, I find that the prosecution has established each of the charges against the accused to the requisite standard. Magistrate M O'Brien Nowra Local Court

Endnotes

1. (1998) 197 CLR 250; [1998] HCA 68
2. See par. 90 of this judgment
3. Exhibit 7
4. which came into effect on 5 February 2007 upon the commencement of the Fisheries Management (Ocean Hauling Share Management Plan) Regulation 2006 - see s 60 of the FM Act which provides for the making of a management plan for a fishery by regulation.
5. From the statement of Catherine Anne Foster dated 3 August 2020 and from evidence adduced from the accused
6. See DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523, [1985] HCA 43; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185, [1999] VSCA 120.
7. which is referred to in Div 3 and 4 of the MEM Act
8. Cl 3.2 and Div 11, Map 8 Hare bay of the MEM (MR) Regulation
9. S 4(1) of the MEM Act
10. Cl 1.3 of the MEM(MR) Regulation
11. for this purpose is to be observed that clause 3 (one) of schedule 2 to the MEM act provides that a Marine Park under the former act immediately before the repeal date is taken to be a Marine Park declared under the MEM act with the same assigned to the Marine Park under the former act
12. see Part 3 and clause 1.1
13. Clause 3.2ff
14. Clause 1.7 of the MEM (MR) Regulation
15. A community of Aboriginal people - see Transcript of 17 November 2021 at page 71 lines 13-14
16. Transcript - 17 November 2021 at page 63 lines 30-40
17. Ibid at page 64 lines 16-18
18. Exhibit 7
19. Transcript of 17 November 2021 at page 65 lines 15-24
20. Ibid at page 68
21. [2018] SASCFC 23; 231 LGERA 13, at [118]
22. At [22] and [32]
23. at 257 - 259
24. Gleeson CJ at 574E, 574F
25. At [151] per Fryberg J; [97] per McPherson JA
26. Akiba (supra)
27. Wandarang v Northern Territory (2000) 104 FCR 380 at [99] per Olney J - see also Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169 at [603]
28. At [783]
29. Woolmington -v- DPP [1935] AC 462; see also Lee -v- The Queen (2014) 253 CLR 455; [2014] HCA 20