R v Amoedo & Dominguez

Fisheries Management Act 1991 Evidence Act 1995 LEGISLATION CITED: Customs Act 1901 Customs (Interception of Vessels) Regulation 2001 Acts Interpretation Act (Cth) 1901

Watson v AG (NSW) (1987) 8NSWLR 685 Levinge v Director Custodial Services (1987) 9 NSWLR 546 R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42 Olbers Co. Ltd v The Commonwealth (2004) 148 ACR 547 Jago v The District Court of New South Wales (1986) 168 CLR 23 Walton v Gardiner (1993) 177 CLR 378 CASES CITED: R v Raby [2003] VSC 213 Project Sky Blue v The Australian Broadcasting Authority (1998) 194 CLR 355 Lavender v The Queen (2005) 79 LJR 137 Saraswati v The Queen (1991) 172 CLR 1 Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 R v Lijo & Ors [2004] WAD 29

Regina PARTIES: Alfonso Dacruz Amoedo Enrique Dominguez

P Hastings QC - Crown COUNSEL: L Crowley - Crown M T Trowell QC - Offenders H K Dhanji - Offenders

SOLICITORS: Ms A Samad - Commonwealth DPP - Crown T Anderson - Phillips Fox - Offenders

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

2 The charges to be brought against each of the accused are in the following terms: That they each, 1. Between about 25 June 2005 and about 27 June 2005, at a place in the Australian Fishing Zone, namely in the area of waters known as the Macquarie Island Australian Fishing Zone, being the area of waters surrounding Macquarie Island extending from the 3 nautical mile boundary to the 200 nautical mile boundary, did intentionally use a boat, namely the Taruman, having been reckless as to the facts that the said boat was a foreign boat, that the said boat was used for commercial fishing and that the said boat was, at the time so used, at a place in the Australian Fishing Zone. Further that in the alternative to Count 1 that they each, 2. Between about 25 June 2005 and about 27 June 2005, at a place in the Australian Fishing Zone, namely in the area of waters known as the Macquarie Island Australian Fishing Zone, being the area of waters surrounding Macquarie Island extending from the 3 nautical mile boundary to the 200 nautical mile boundary, did use a foreign boat, namely the Taruman, for commercial fishing. Further that they each, 3. Between about 25 June 2005 and 27 June 2005, at a place in the Australian Fishing Zone, namely the area of waters known as the Macquarie Island Australian Fishing Zone, being the area of waters surrounding Macquarie Island extending from the 3 nautical mile boundary to the 200 nautical mile boundary, did intentionally have in their charge a board, namely the Taruman, having been reckless as to the facts that the said boat was a foreign board, that the said boat was equipped with equipment for fishing and that the said board was, at the time it was in their charge, at a place in the Australian Fishing Zone. Further that in the alternative to Count 3 that they each, 4. Between about 25 June 2005 and about 27 June 2005, at a place in the Australian Fishing Zone, namely the area of waters known as the Macquarie Island Australian Fishing Zone, being the area of waters surrounding Macquarie Island extending from the 3 nautical mile boundary to the 200 nautical mile boundary, did have in their charge a foreign boat, namely the Taruman, equipped with equipment for fishing.

3 The principal offences alleged are brought pursuant to s100A and s101A Fisheries Management Act hereinafter referred to as FMA, and the two alternative charges are brought pursuant to s100 and s101 of that Act.

4 Prior to the arraignment of the accused in the presence of the jury panel, the accused have raised two issues to be resolved by this court.

5 The first application of the two accused to be dealt was an application that there be ordered a permanent of stay of proceedings on the basis that the prosecution of them is an abuse of process. The abuse of process alleged is the unlawful actions of Australian authorities on the high seas which have brought the two accused within the jurisdiction of Commonwealth law.

6 In the alternative, the accused propose to submit that the evidence adduced arising out of the boarding of the ship that they were responsible for, and said to be relevant to their prosecution in relation to the offences I have outlined, was obtained as a result of illegal and/or improper acts of Australian authorities when they boarded the accuseds' vessel, gathered evidence and apprehended the two accused, and that it ought be excluded in an exercise of discretion available to this court pursuant to s138 Evidence Act 1995.

7 The Commonwealth Director of Public Prosecutions opposed both applications on the basis that the relevant actions of Australian authorities were lawful. The first application of course to be resolved is that seeking a permanent stay of proceedings.

8 In opposing the application of the accused, the Crown relies upon three bases for the authority to board the Taruman on the high seas. Those three bases were, firstly, that the authority provided by the Fisheries Management Act 1991, in s84(1) in particular, provides for the use of coercive powers by relevant officers. Secondly, the authority to repossess the boat as property forfeited to the Commonwealth existed whereby the boarding of the vessel by the Commonwealth was the first act by the Commonwealth in recovering its own property which had been forfeited to the Commonwealth in according with the provisions of s106A FMA. Thirdly, there existed an agreement between the governments of Australia and Cambodia as provided for under s184A(8) Customs Act 1901 and thus any consequent powers exercised pursuant to s185A of that Act were lawful in furtherance of that agreement or arrangement.

9 I declined to grant the orders sought by each of the accused on Friday just prior to the luncheon adjournment. The parties requested that I give reasons before moving to the second application to which I agreed.

10 I regret to say that the proceedings have been delayed for this reason, as I was hoping that we could proceed to the second aspect immediately but I understand the basis upon which the parties sought my reasoning before the second application was dealt with.

11 Having ordered that there by no stay of proceedings in relation to this matter, the accused were arraigned.

12 In determining this matter I have had regard to all the evidence, both oral and documentary, presented to the Court in relation to the application and detailed submissions of both the Crown and the accused, both in writing and orally.

13 On 27 June 2005 a Royal New Zealand Air Force (RNZAF) Orion P-3K aircraft conducted a fly over of the Australian Fishing Zone around Macquarie Island. At that time the Taruman was observed by the Orion's crew to be at a location approximately 90 nautical miles south of Macquarie Island. The location of the Taruman placed it well inside the Macquarie Island Australian Fishing Zone or AFZ. During the flyover the crew on board the Orion took a number of photographs of the Taruman.

14 The Australian Customs Service (ACS) was subsequently notified of the presence of the Taruman by New Zealand authorities and was provided with copies of the photographs taken by the RNZAF members on 27 June 2005. These photographs showed activity on the vessel consistent, on the Crown case, with fishing operations.

15 ACS through its Enforcement Operations Branch, headed by Brian Hurrell, began an operation to locate the Taruman at sometime subsequent to 27 June 2005. As a result of information received from New Zealand authorities on 23 August 2005, ACS officers and officers of AFMA embarked on a patrol vessel, controlled by ACS called the "Oceanic Viking", from Hobart to patrol an area south west of that city, to attempt to locate the Taruman after a briefing that was conducted on 22 August, attended by Finola Leary, the Operations Manager for Southern Ocean Customs and Fisheries Patrols and Ian Jones, who was to be the "Group Commander" whilst on the ocean.

16 At about 12.45 hours on Sunday 4 September 2005 a further briefing was conducted on the Oceanic Viking relating to the Taruman during which copies of the photographs provided by the RNZAF were shown to ACS officers, who were to involve themselves in the boarding procedure and to enable them to identify the Taruman.

17 At about 8.30 hours on Tuesday 6 September 2005 a further briefing was conducted on board the Oceanic Viking regarding the anticipated boarding of the Taruman.

18 At about 11.20 hours on 6 September 2005 the Oceanic Viking made visual contact with the Taruman. The vessel was sighted on the high seas, thus the vessel obviously was not within the AFZ. Radio communication was established between the Oceanic Viking and the Taruman.

19 I should point out in relation to the matter that Mr Dominguez was the Master of the Taruman and Mr Almoedo was the Fishing Master of the Taruman.

20 During the course of several radio exchanges the Group Commander of the Ocean Viking, Ian Jones, notified Taruman that ACS officers wished to board that ship. Mr Jones also advised the Taruman that there was signed agreement between the Cambodian and Australian governments authorising the boarding of the Taruman under s184A(8) Customs Act.

21 After a series of further communications the Taruman eventually agreed to allow officers from the Oceanic Viking to board the ship, however this agreement was under threat of being fired upon, but not at, in circumstances detailed in Mr Jones' evidence. Thereafter inflatable dinghies or tenders containing ACS officers were deployed by the Oceanic Viking and at about 12.32 hours the first ACS boarding party, headed by Mr Malcolm O'Flanagan, boarded the Taruman. A second boarding party arrived some time later to provide assistance.

22 On board Mr O'Flanagan spoke to the Master and Fishing Master of the Taruman. Only one of them spoke or understood English to any real extent. The boarding party secured the vessel and conducted a search of the bridge area. During the search various items of interest were located, including what appeared to be fishing logs, catch logs and related charts. From items located it appeared that the Taruman had been fishing within the AFZ around Macquarie Island on 25 and 26 June 2005.

23 Once the Taruman was secured by ACS officers at about 15.15 hours, Australian Fisheries Officer Kym Wakefield was transported to the Taruman to assist ACS officers. Once on board, Mr Wakefield examined the fishing logs and confirmed that there appeared to be entries for 26 June 2005 with coordinate locations within the Macquarie AFZ. It was already known to the coordinators of this mission through diplomatic cables that had been inspected that the Taruman had acknowledged its presence at the relevant time within the AFZ to Cambodian authorities.

24 Wakefield examined the other evidence that had been located and reported back to the Group Commander, Mr Jones. I shall deal shortly with aspects of the evidence relating the boarding that require examination in the context of the current application.

25 At the time of the boarding the Taruman had a number of long lines in the water and appeared to be engaging in fishing, which at that time was time entirely legal. The master and fishing master of the Taruman were requested to retrieve their long lines and directed by the boarding commander, Mr O'Flanagan, to head to the port of Hobart, after much evidence that is now to be relied upon to prove the guilt of the accused was recovered from the vessel's records or equipment. O'Flanagan provided this direction verbally, pointed to a chart indicating where Hobart was located, and showed a Spanish translation card - which I have seen - which advised, amongst other things that the boat was to be taken to an Australian port "for further investigations".

26 As far as I can work out from the evidence available to me, this is the first occasion that any communication was undertaken in Spanish with the Master or the Fishing Master. They were directed to retrieve their long lines from the water which was done in circumstances I need not dilate upon. Apart from an initial muster of the crew and the initial confrontation with the Master and the Fishing Master, when they were subject to direction, as I understand it the crew, the Master or the Fishing Master had the freedom of the ship, although the Master and the Fishing Master were required to control the vessel at the direction of Mr O'Flanagan and his colleagues.

27 Later, as I understand it, notices under the Fisheries Management Act were served in accordance with that Act on 10 September. The Taruman entered the harbour at Hobart at 1300 hours on 10 September 2005 and was secured at a wharf. Thereafter the Master of the Taruman was served with a notice pursuant to s 106C FMA advising of the seizure of the vessel and all equipment on board.

28 I have seen a video or a film of the ship showing a walk through inspection of the bridge and various aspects of the vessel relevant to the issues to be determined in this application. On Saturday 17 September 2005, at about 0205 hours, the crew of Taruman were handed over to officers of the Department of Immigration and Multicultural Affairs (DIMIA) and placed in their care. Later the crew were transferred to the Villawood Immigration Detention Centre at Sydney: hence the matter is tried in a New South Wales Court.

29 In the helpful submissions of the prosecution, at paras 21 to 37, putting aside matters of argument, there is an outline of relevant matters as to the freedom of movement of foreign flagged vessels on the high seas and the legal framework of this in international law, particularly by reference to the United Nations Convention for the Law of the Sea, otherwise known as UNCLOS, which is exhibit 9 in these proceedings, and as to various maritime zones and the coastal state jurisdiction as it is described. These areas may be broken up into: the territorial sea, the contiguous zone, the Exclusive Economic Zone (or EEZ), and the Australian Fishing Zone (AFZ).

30 The AFZ and the EEZ have the same meaning at law, each extending up to 200 nautical miles from the baselines upon which the breadth of the territorial sea is measured. The legal basis of the Commonwealth of Australia's rights and claims over these areas are set out in the Crown's written submissions and need not be discussed any further. They are not in dispute.

Other matters relevant to the circumstances of the boarding and the seizure of the Taruman.

31 The operation to intercept the Taruman and the circumstances of its boarding require consideration of the roles of various individuals, a number of whom gave evidence in respect of the application. The operation was supervised by Mr Brian Hurrell, an officer of ACS, who had the title of National Manager of Enforcement Operations. He was relevantly the "Operation Chief" and was apparently Chairperson of the Operations Advisory Group, or OAG, which met from time to time to discuss maritime matters on the Southern Ocean relevant to the enforcement of Australian law.

32 This group met to consider this particular operation, at least on the Tuesday 6 September 2005, before, during and after the boarding of the Taruman in one meeting. Whilst Mr Hurrell had overall executive control in Canberra, beneath him, in Canberra, was Finola Leary, another officer of the Australian Customs Services, described as "Manager of Southern Ocean Operations," who in fact was verbally directing the operation subject to instruction from Mr Hurrell and the Operations Advisory Group.

33 She was described as the "Operations Commander" and was specifically directing the Group Commander, Ian David Jones, who was on the Oceanic Viking communicating with the Master of the Taruman and the boarding party. The Boarding Commander, as I already noted, was Malcolm O'Flanagan, who was one of a boarding party of approximately six. Once the ship was secured, there were several investigation officers, being James Marsden and Kym Wakefield, who undertook various investigations. Mr Wakefield had in his possession some recording equipment to record conversation, the transcript of which I have seen. A video camera was damaged on transit from a tender.

34 For the purposes of determining this application and other matters, all the boarding party were relevantly "officers" for the purposes of the relevant legislation that I am considering. No dispute arises in relation to that matter.

35 From the evidence given in relation to circumstances of the boarding, in oral evidence and in documentation, I am satisfied that the following relevant facts are established: 1. Neither the Master of the Taruman or the fishing Master or their agents, at any relevant time, voluntarily consented to the boarding of the ship or any search and/or inspection conducted upon it. Such consent that was given, and cooperation provided, was given under what was clearly the threat of force. 2. The boarding of the ship and subsequent actions were was, so far as all relevant decision makers were concerned, affected pursuant to powers believed to exist under s 184A and s 185A of the Customs Act . S 185A particularly relates to matters of inspection and investigation. There is also the related Regulation to which I will refer later. 3. At the time of the interception and boarding, all relevant decision makers had a belief that the Taruman had been involved in fishing within the AFZ of Macquarie Island, based upon their respective interpretations of photographs provided by the Royal New Zealand Air Force, the character of the vessel, and its presence well within the AFZ. There is no evidence that any of these persons had communicated directly with the observers on the Orion aircraft, or read any report from those person in relation to their observations. They, however, relied upon the photographs and their interpretation of them for the purposes of the operation, as well as drawing conclusions from the related circumstances to which I have referred, based upon their experience. 4. Mr O'Flanagan, once he and his party had control of the bridge, directed members of his party to conduct inspections and to search for material that might provide evidence of illegal fishing within the AFZ. 5. Only after some such evidence was brought to his attention did he direct the Master to sail to Hobart and the Master and the Fishing Master were informed, in a language that they could then clearly understand, that the purpose of taking the fish to Australia was "for investigation of possible breaches of Australian fishing law." 6. Mr O'Flanagan was of the understanding on the information provided to him by the Group Commander, that the purpose of the boarding was to check the registration of the Taruman and to carry out an investigation as to whether there had been any illegal fishing conducted in Australian waters. The instructions were to look at any relevant log books of the ship, fishing logs, and other logs that could be found. 7. O'Flanagan had what he described as a "slim belief" that the Taruman had been fishing in the AFZ. Mr Jones, however, was more certain in his belief that the Taruman had been involved in illegal fishing operations within the AFZ. He interpreted the presence of men in what was described as the "cutaway" area as consistent with men involved in fishing operations, as had Mr O'Flanagan to some extent. Although no direct evidence was given in relation to this matter by Mr Hurrell I infer that he likewise was of the view that the Taruman had been involved in fishing operations within the AFZ, based upon the circumstantial evidence available. Leary was of the same view as Mr Hurrell. I have no doubt that their views were collectively reached, given their professional relationship and the evidence available at briefings, particularly briefings between Ms Leary and Mr Jones of which I am aware. It should be pointed out that the very character of the operation to intercept the Taruman, the endeavours on the part of the Australian Government to obtain an agreement or arrangement with the Cambodian Government, the endeavours to get advice as to the basis upon which the Taruman could be intercepted on the high seas and the specific nature of the operation culminating with the boarding on 6 September 2005, demonstrate clearly the belief or a very strong suspicion of previous illegal fishing activity by the subject vessel.

36 There are, however, other aspects of the matter to be noted at this point.

37 In relation to the available photographic evidence of fishing in the AFZ prior to boarding there is a conflict in the evidence of Ms Leary and Mr Jones as to whether he was emailed additional photographs, or an additional photograph, to those available at Hobart on or about 22 August 2005, whilst he was on board the Oceanic Viking. The photograph or photographs to which he referred would appear to be photographs other than those available to this Court. Given this conflict and in the absence of any photograph to which he referred being produced in these proceedings, to confirm his claim that he saw, at least in one photograph, a fishing line (or branch line or main line) at an angle from the ship to the ocean consistent with fishing operations, I can only conclude that Mr Jones is either mistaken or exaggerating what he claims he saw or not telling this Court the truth.

38 Notwithstanding this, on the other hand, whilst there is no evidence of such a photograph as described by Mr Jones, other than from him, I accept that he genuinely believed that the Taruman had been fishing within the AFZ on such evidence as was available to him and that he formed the view that the photographs that I have seen and that he saw showed activity by crew members, which was consistent with their presence in a section of the ship associated with fishing activity.

39 The decision to board at the relevant time was his, as the Commander of the operation, on the ground so to speak, in consultation with Finola Leary who was conveying instructions given to her by Mr Hurrell in consultation with the OAG at that time. Ultimately, responsibility for directing a boarding lay with Mr Hurrell, but Mr Jones had to give practical effect to such directions as he received.

40 The evidence that was obtained as a result of the inspection and search after the boarding of the Taruman conducted by relevant officers, is conceded by the accuseds' counsel to be of "high" probative value. I have been provided with a folder of material, including a translation from Spanish into English of relevant documents written in the Spanish language, setting out details of what was obtained from this search or these searches. The records, as I have said, include logs, details of coordinates where fishing lines were left, details of a navigation log and what might be called other computer records.

41 The prosecution contends the evidence establishes the presence of the Taruman in the Australian Fishing Zone around Macquarie Island and that the Taruman and its crew were involved in fishing as defined in the Fisheries Management Act 1991.

42 It is primarily contended on behalf of the two accused that the representatives of the Australian Government boarded the vessel purportedly pursuant to the powers available under s 184A(8) Customs Act and that the circumstances were such that the power claimed to board the vessel under those provisions did not exist.

43 It is submitted that any consequent powers purportedly exercised pursuant to s 185A of that Act were themselves unlawful. S 184A relevantly provides:

"(1) In the circumstances described in subsection (2), (3), (4), (5), (6), (7), (8) or (9), the commander of a Commonwealth ship or Commonwealth aircraft may request the master of a ship to permit the commander, a member of the commander's crew or an officer to board the master's ship. (8) The commander may make the request if: (a )the master's ship is: (i) outside the outer edge of the contiguous zone of Australia; and (ii) outside the territorial sea of a foreign country; and (b) the commander reasonably suspects that the master's ship is a foreign ship that is entitle to fly the flag of a country; and (c) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country. The commander must not make the request under this subsection if it may be made under subsection (5), (6) or (7)".

44 There are other provisions in s 184A which set out powers relevant to officers as defined in the Act which I will refer to later. S 185A(4) relevantly provides in context: "(1)This section applies to a ship if: (a) a request has been made under: (i) subsection 184(1(8) (request to board a ship of a country with which Australia has an agreement); or (ii) subsection 184A(9) (request to board a ship without nationality); and (b) the ship is: (i) outside the outer edge of the contiguous zone of Australia; and (ii) outside the territorial sea of any country (including Australia). (2) An officer may: (a) board the ship; and (b) ask all persons found on the ship questions about: (i )the identity of the ship; and (ii) the voyage of the ship; and (c) require all persons found on the ship to produce documents relevant to: (i) finding out the identity of the ship; or (ii) the voyage of the ship; and (d) require the master or a member of the master's crew to show the commander or a member of the commander's crew readings of the ship's navigation instruments relating to the voyage of the ship. (4) If: (a) after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and (b) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country; then the officer may exercise the powers prescribed by the regulations consistently with that agreement or arrangement."

(See Reg.8 - Customs (Interception of Vessels) Regulation 2001).

45 Particularly it is contended on behalf of the accused that there was no relevant "agreement or arrangement", as contemplated by s 184A(8), either because the sections terms contemplate an agreement other than that claimed to be had with the Cambodian Government or alternatively that the agreement or arrangement with the Cambodian Government was a limited one which did not extend to invoke relevant authority under the relevant provision and thus undertake the tasks that were undertaken and exercise the powers that were exercised. It is submitted that no other statutory power existed to permit boarding in the circumstances of this matter, particularly in response to the Crown's submissions concerning s 84 and s 106A FMA.

46 Relying upon the decisions of Watson v AG (NSW) (1987) 8 NSWLR 685, Levinge v Director Custodial Services (1987) 9 NSWLR 546 (at 557-8 per Kirby P, 564F per McHugh JA and 567E per McLelland AJA) and R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42, (particularly the opinion of Lord Griffiths at 54-64), it is submitted that a permanent stay is the only order that can be made to cure the egregious abuse of process that occurred in this particular matter.

47 It is submitted that the illegal conduct to which the prosecution authorities, such as the Australian Customs Service and Australian Fisheries Management Authority officers were parties, was serious and conscious illegality, breaching the rights of a foreign flagged vessel on the high seas in circumstances which were a breach of the UNCLOS, particularly fundamental principles set out in Pt VII of it, such as in Articles 87, 89 and 92. It was submitted that these acts involved acts "akin to piracy committed to bring the accused to trial in relation to charges that carry only fines".

48 The conduct is egregious to the point that accepting that the two accused were, by reason of the illegal boarding, illegally brought into the jurisdiction against their will or without their consent this Court ought to exercise its discretion not to exercise or grant jurisdiction as to do so would be an abuse of the court's processes.

49 The Crown's response in relation to the justification to board under the Customs Act is that the boarding of the Taruman was authorised by the flag state of the vessel, namely the Kingdom of Cambodia. The Crown further submitted that the terms of the agreement were wide enough to encompass all the relevant acts carried out by the Australian Authorities in boarding the vessel, searching the vessel, directing the vessel to an Australian port and seizing relevant and evidentiary material. Despite the fact it is submitted that there is evidence that the Taruman's registration with Cambodia had expired as at the date of its boarding on 6 September 2005, it is common ground that the Taruman was flagged to Cambodia at that time. That is not disputed by the accused.

50 Further, it is submitted on the basis that the agreement existed, the Australian authorities were authorised to use the powers provided under the Customs Act and under the Customs (Interception of Vessels) Regulation 2001.

51 The procedural steps under those enactments were, the Crown submitted, firstly that where a commander of a Commonwealth ship reasonably suspects that a ship on the high seas is a foreign flag vessel with which Australia has an agreement or arrangement with the relevant flag state to exercise jurisdiction over that foreign flag vessel, the commander may make a request to board the foreign ship (see s 184A(8)).

52 Secondly, once the request has been complied with Customs Officers may then board the foreign ship for the initial purposes of establishing the identity of the foreign ship (s 185(a)(2)). At this stage the powers to be exercised are limited solely to establishing the identity of the ship, whether it is in fact flagged to the foreign state with which Australia has an agreement to exercise jurisdiction and to ask questions about the voyage of the ship (see s 185A(2)(b)).

53 Thirdly, if upon exercising these initial powers the relevant Officer is satisfied that the ship is a foreign ship entitled to fly the flag of the state with which Australia has the relevant agreement or arrangement to exercise jurisdiction, the Officer may then exercise the further powers prescribed by the regulations consistent with that agreement or arrangement (see s 185A(4)).

54 Fourthly, the powers that may then be exercised by the Officer, consistent with the agreement or arrangement as set out in Regulation 8, of the Regulation to which I earlier referred.

55 The prosecution further contends that in addition to powers that were available pursuant s184A Customs Act there existed a power to board, search and detain evidence, pursuant to s84A(1)(a) FMA and/or power to board search and detain pursuant to the provisions of s106A of that same Act. Particularly relying upon the decision of the Full Federal Court in Olbers Co. Ltd v The Commonwealth (2004) 148 ACR 547. The prosecution submits that while there is jurisdiction for this Court to permanently stay proceedings as an abuse of process, it should not in this case because, there was no illegal act relevantly identified in the conduct of the authorities and, even having regard to the arguments of the accused, this matter did not evidence in all the circumstances the supposed egregious conduct, such as "piracy" as alleged, that warranted that matters in favour of a grant of stay outweighing the public interest in favour of prosecution of the accused.

56 It was further submitted that the circumstances of this matter did not satisfy the relevant tests espoused in leading authorities of the High Court relating to the circumstances when a permanent stay of proceedings will be ordered as an abuse of process.

57 The authorities relied upon by the accused to which I earlier made reference have held in general terms that whilst a person who is brought into the jurisdiction unlawfully may still be subject to that jurisdiction to be dealt with according to law, courts have a discretion not to deal with that person where to exercise such a discretion would involve an abuse of the court's process. The categories of such matters are clearly not closed and the issues that arise are discussed in detail in paras 35 to 39 of the accused's submissions, and at paras 97, 98 of the prosecution's written submissions. Although the prosecution did not submit against the basic correctness of this essential proposition of the accused.

58 This Court has jurisdiction to order that proceedings be permanently stayed as an abuse of process (see Jago v The District Court of New South Wales (1989) 168 CLR 23). However, "The power will be used only in the most exceptional circumstances." To justify a permanent stay of proceedings, "there must be a fundamental defect which goes to the root of the trial of which nature nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences" (Jago at 30-32 per Mason CJ: Walton v Gardiner (1993) 177 CLR 378 at 392-394). The question of whether criminal proceedings should be permanently stayed as an abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations (including) consideration of the requirement of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice (see Walton v Gardiner at 395-396).

59 I have noted what Justice Byrne of the Victorian Supreme Court said in R v Raby [2003] VSC 213 (at [37]). There, in discussing whether a permanent stay of proceedings ought be granted in relation to breaches of extradition law or procedure, his Honour observed that at the very least: "The departure complained of must be very serious such that in the circumstances, for the Court to continue with the proceedings, would offend the very integrity and functions of the Court...it is not sufficient for a stay...merely that there has been some departure from the proper procedures for bringing the accused from outside the jurisdiction; the Court must undertake some assessment of the seriousness of the departure and of the guilty mind of those involved for it is only where there is a deliberate and serious departure from the required legal procedures that the Court will register its disapproval by denying to the prosecuting authority the right to proceed against the accused person."

60 These observations in an unlawful extradition case as it was alleged must be seen in the context also of the general principles which I have earlier outlined. It is common ground that the onus for justifying a grant of a permanent stay rests upon the applicants.

61 At this point I propose to take the unusual course of encapsulating from the outset the basis for refusing the applications as that decision effects each accused. I come to this conclusion on the basis that whilst I am not satisfied there was a relevant "agreement" or "arrangement", as required to invoke the provisions of the Customs Act, earlier referred to, and that s84 provided no power to board, detain or search, s106A as construed in Olbers v The Commonwealth, to which I made earlier reference made Taruman, at law, the property of the Commonwealth as and from 26 or 27 June 2005 and thus the Commonwealth officers at the relevant time they boarded were entitled to board the property of the Commonwealth, seize that property and its equipment and, in the circumstances, direct the Master that the ship be sailed back to the Australian EEZ. This being so the conduct was less egregious, to use the applicant's word, than any purported failure to comply with either s184A Customs Act or s84 FMA. The circumstances do not provide in my view "the fundamental defect" that warrants the exceptional grant of a permanent stay of proceedings. Further, the appropriate balancing of competing interests militates against such a grant. It is not a case where one could say that the only remedy for the accused in all the circumstances is a grant of a permanent stay. The conduct, by regard to Australian domestic Law, does not constitute the act of "piracy" that was alleged as justifying an order to permanently stay the proceedings. Even with a hint of ex post facto justification for what occurred, given the state of mind of the investigators or enforcement agencies at the time of the boarding, the conduct revealed in the evidence before me cannot be seen to be so egregious as to warrant the exceptional order sought.

62 The cardinal rule of statutory construction is to give effect to the purpose of the legislation as expressed in the language of the legislation being considered in context (Project Sky Blue v the Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382). If a literal interpretation or the grammatical meaning of legislation does not conform with its purpose, ascertained, from the statute as a whole including the policy which maybe discerned from its provisions and extrinsic aids, the Courts should give effect to that purpose. Where grammatically capable of only one meaning and neither the context or the purpose of the Act throws any real doubt on the meaning, then a grammatical construction is the ordinary meaning to be applied (see Lavender v The Queen (2005) 79 ALJR 137, at paras [93], [94] per Kirby J, Saraswati v The Queen (1991) 172 CLR 1 at p. 21-23 per McHugh J.

63 The legislative context of the relevant provision is significant in the construction of the relevant legislative provision (see Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297, at 320-321). Where appropriate and relevant a statute, to the extent that its language permits, should be interpreted in a manner that is in conformity and not in conflict with Australian International obligations. (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273). However provisions of treaties to which Australia is a party cannot be used to contradict the unambiguous language of the Act (see s15AB(1)) Acts Interpretation Act (Cth)1901.

64 In understanding the purposes of an Act aids to construction that may be taken into account include Legislative Memoranda, Parliamentary Second Reading speeches etc, particularly if any ambiguity exists upon the ordinary language.

65 S106A FMA is in Subdivision B of Part 6, Division 6 of the Act. That Subdivision of that Act is concerned with 'Dealing with things seized as automatically forfeited'. The Part is concerned with "Surveillance and Enforcement"

66 S106A provides: "The following things are forfeited to the Commonwealth: (a) a foreign boat used in an offence against: (i) subsection 95(2); or (ii) section 99; or (iii) section 100; or (iv) section 100A; or (v) section 100B; or (vi) section 101; or (vii) section 101A; or (viii) section 101AA; (b) a boat used in an offence against section 101B as a support boat (as defined in that section); (c) a net or trap, or equipment, that: (i) was on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or (ii) was used in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A, 101AA or 101B; (d) fish: (i) on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or (ii) involved in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A, 101AA or 101B.

67 In Olbers Co. Ltd v The Commonwealth, to which I made earlier reference (also at [2004] FCAFC 262) the Full Bench of the Federal Court upheld the primary judge's finding that forfeiture pursuant to s106A of the Act occurred at the time of the commission of a relevant offence. Here in this matter the relevant offences are alleged pursuant to s100A, s101A, s100 and s101 of the Act. Thereafter the boat, relevant 'equipment' and the catch were the property of the Commonwealth at the time of boarding. In Olbers boarding occurred after the commission of the offence.

68 The Federal Court held that those persons who were on board were agents of the owners of the vessel at the time the vessel was boarded, and when the vessel was taken into their custody. Without expressing a final view on the matter, the Court did not assume, on the information available to it 'that the exercise of self help remedies by the owner of the ship' was subject to the UNCLOS, even where the owner was a State. Such issues, it believed, were subject to "domestic law" not "international law". The Court, in this matter, rejected an argument that forfeiture did not divest Olbers Co. Ltd of possession, as s106A of the Act 'is clearly a forfeiture of all interests in the vessel including all rights of possession' (See [21], [22], [23] at page 555).

69 Further the Court held the operation of s106A did not require compliance with or regard to the operation of s84 and s87 FMA (see pages 549 and 554). I believe that I am bound by the ratio decidendi of the decision and must follow, as ultimately persuasive, the obiter dicta of that judgment as well.

70 On its face of course, having regard to this judgment, s106A potentially provides a theoretical basis for boarding and seizure without even the existence of a reasonable suspicion. Although in the matter which I am concerned with the seizure followed upon the events earlier referred to occurring in June 2005 in the context of the belief or understanding of the relevant officers.

71 Whether, of course, what is lawful for commercial or common law purposes, as determined in Olbers, is relevant as determining what is 'proper' in the area of 'public law', that is the body of law dealing with the powers and rights of obligation of the government and the governed, including the criminal law and the responsibility of public officers towards the State, each other and the public, is a matter that will require discussion concerning other issues to be decided.

72 In passing I construe the word 'equipment' as it is referred to in s106A to include the various items seized. These must necessarily be regarded as being 'equipment...on a boat' at the time of the alleged offences and/or 'used in the commission of an offence against those sections', given the wide definition of fishing in s4 FMA.

73 In short the relevant officers, which included of course Mr O'Flanagan and his boarding party, the investigation officers and Mr Jones for that matter, boarded and took control of the property of the Commonwealth, having regard on the totality of the evidence as to the activities of Taruman and its crew in late June 2005.

74 I note that s106A appears in the same Part of the Act, a s84 to 87. The language in s84 reflects some of the language in s106A as to items that may be seized. (eg see s84(1)(g) and (ga)). I note that in the context of the legislation s84 and s87 appear to be the only provisions that regulate the matter of affecting forfeiture, subject to those provisions in s106B to 106G. Of course these latter provisions were said in Olbers to 'provide a mechanism by which it can be adjudged and formally recorded whether a forfeiture has already occurred'.

75 The Crown submitted, for reasons set out in para 77 to 85 of its written submissions, that the officers had power to board and conduct the relevant searches. S84 sets out 'Powers of Officers' under the relevant Division of the Act. s84 provides relevantly. "(1) An officer may: (aa) for the purposes of boarding a boat that is at a place where the officer may board it under paragraph (a) or (b): (i) require the master to stop the boat at such a place to allow the officer to board it; and (ii) if the master does not stop the boat as required and the boat is not an Australian-flagged boat, use any reasonable means consistent with international law to stop the boat (including firing at or into the boat after firing a warning shot, and using a device to prevent or impede use of the system for propelling the boat); and (a) board a boat in the AFZ or in Australia or an external Territory or a boat that the officer has reasonable grounds to believe has been used, is being used, or is intended to be used, for fishing in the AFZ and may: (i) search the boat for fish, for equipment that has been used, is being used, is intended to be used or is capable of being used for fishing or for any document or record relating to the fishing operations of the boat; and (ii) break open any hold, compartment, container or other receptacle on the boat that the officer has reasonable grounds to believe contains anything that may afford evidence as to the commission of an offence against this Act; and (aaa) subject to section 84AA, search without warrant: (i) a person on a boat that the officer reasonably suspects is a foreign boat used in an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A or 101AA or a foreign boat used as the support boat in an offence against section 101B; and (ii) the person's clothing; to find out whether there is hidden on the person or in the clothing: (iii) a weapon; or (iv) a thing capable of being used to inflict bodily injury on another person; or (v) a thing that may afford evidence as to the commission of an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A, 101AA or 101B; and (g) subject to subsection (1A), seize, detain, remove or secure: (i) any fish that the officer has reasonable grounds to believe has been taken, processed, carried or landed in contravention of this Act; or (ii) any boat, net, trap or other equipment that the officer has reasonable grounds to believe has been used, is being used or is intended to be used in contravention of this Act; or (iii) any document or other thing that the officer has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and (ga) seize all or any of the following that are forfeited to the Commonwealth under section 106A or that the officer has reasonable grounds to believe are forfeited under that section: (i) a boat; (ii) a net, trap or other equipment; (iii) fish; and "

76 S84(1A) provides certain steps to be taken if powers are exercised under s84(1)(g). S87 provides: "(1) An officer may exercise, with respect to boats (including foreign boats) and persons (including foreign nationals) at a place at sea outside the AFZ but not within the territorial sea of another country, a power conferred on the officer under section 84 if: (a) one or more officers (whether or not including the officer exercising the power) have pursued the person or boat from a place within the AFZ to such place; and (b) the pursuit was not terminated or interrupted at any time before the officer concerned arrived at such a place with a view to exercising that power. (2) For the purposes of subsection (1), a pursuit of a person or boat is not taken to be terminated or substantially interrupted only because the officer or officers concerned lose sight of the person or boat. (3) A reference in subsection (2) to losing sight of a person or boat includes a reference to losing output from a radar or other sensing device."

77 The Crown submitted that s87 should be read as dealing with only part, in effect, of the terms of s84(1)(a), that is as qualifying or explaining the part of that subparagraph concerned with "boarding of boat" in the AFZ, or in Australia or in an external territory, or some other situation, but not relating to 'a boat that an officer has reasonable grounds to believe has been used or was being used or is intended to be used for fishing in the AFZ' not actually in the AFZ.

78 The Crown said that s87 did not fetter, qualify or inform the exercise of relevant power available to board a ship on the high seas that had not been the subject of pursuit. The Crown says, in its submissions, that the wording of s84(1)(a) is unambiguous. Viewed in isolation that may be so but the section cannot be viewed in isolation and the wording of s84(1)(a) is not unambiguous when one considers the provisions in s87(1).

79 In fact in its term s87(1) itself is unambiguous in its meaning. It applies applying generally to all of s84(1)(a) and other relevant provisions of s.84. Here there is no suggestion on the evidence of s87(1) of the Act being satisfied.

80 There was no relevant pursuit as was discussed and considered in R v Lijo and Others [2004] WADC29, per Blaxell DCJ, as he then was. That judgment was determined by regard to quite different issues than arise in this matter and was concerned, with respect, more limited factual issues. However, I refer to the terms of para [11] in his Honour's judgment where His Honour held inter alia: "As can be expected the relevant provisions of the Act are largely consistent with Article 111 of UNCLOS(sic). Sections 84 and 87 have the combined effect that an officer may only board a foreign boat on the high seas if: (i) The officer has reasonable grounds to believe that the boat is being used for fishing in the AFZ (s84(1)(a) (which is similar to the requirement in Article 111.1), that the competent authorities of a coastal state must have good reason to believe that the ship has violated the laws and regulations of that state. Note, however, that UNCLOS requires that this belief exists prior to the commencement of the pursuit whereas the Act requires such a belief at the time of boarding); (ii) One or more officers have pursued the boat from the place within the AFZ to a place where it is boarded (see s87(1)(a) which is consistent with the fundamental requirement of Article III); (iii) The pursuit was not terminated or interrupted at any time before the officer concerned arrived at such a place with a view to boarding the boat(s87(1)(b) - as per Article 111.1)."

81 His Honour's observation at [44] is also appropriate to note. There His Honour said regarding a submission set out in para [43]: "...it is relevant to note the apparent purpose of s87(1) which is to limit the circumstances in which an officer might exercise a power under s84 at a place at sea outside the AFZ."

82 With these views I respectfully agree. Thus in the absence of any relevant pursuit there was no lawful basis in my humble opinion to exercise power under s84 FMA to board. In passing, the Full Bench in Olbers without expressing a final view, seemed to regard s84 and s87 as provisions to be considered together, although as I point out, they did not directly consider that issue in light of the primary Judge's conclusions.

Consideration of s184A Customs Act and Related Provisions.

83 I have earlier set out the relevant provisions of s184 and 185A. The relevant provision available under the Regulation referred to in s185(4) is set out in Regulation 8 which I need not reproduce.

84 A critical threshold issue in consideration of this provision, as to its relevance and operation and that of related provisions, is the issue of whether there was "an agreement or arrangement...which enables the exercise of Australian jurisdiction over ships (of Cambodia)." There is no dispute that the Taruman was a Cambodian flagged ship and Cambodia was required to make or give the relevant "agreement or arrangement." Without dilating upon the reasons for so concluding I have no difficulty in accepting the prosecution's submissions that a relevant country "could enter into an agreement or arrangement in relation to an individual ship" and that the terms of s184(A)(8)(c) do not, on proper construction and by reference to the Acts Interpretation Act, require "an agreement or arrangement" of a general nature alone. I accept that the "agreement or arrangement" may be in writing or even informally conveyed and it may be evidenced by communications between the relevant governments or their authorised agents, including cables and correspondence.

85 The Department of Foreign Affairs and Trade (DFAT) has produced ten cables for the period of time between 11 August 2005 and 7 September 2005. A further cable was produced contained within an e-mail produced to this Court under subpoena by AFMA which is dated 23 September 2005. Only two of the cables produced to this Court are from the Cambodian Government or its representatives. The Australian Government cable of 11 August 2005, the first in time produced to this Court, notes an earlier request of Cambodia as to whether "it would give its permission for Australian Authorities to board and inspect the Taruman should the vessel turn out to be Cambodian flagged." This was to be considered by the "Cambodian Government's International Ship Registry Management Committee." The exact terms of the initial request are not produced to the Court as far as I can ascertain but Mr Hurrell sought agreement on 5 August 2005, through DFAT to "board and inspect". The terms of the only Cambodian response directly to that request, which sets out the terms of the permission, are in the letter, or cable dated 19 August 2005 in the following terms "Referring to MV Taruman...which has been reported by your esteemed Embassy on the date of 10 August 2005 to be detected in Australia's Exclusive Economic Zone (EEZ) undertaking illegal fishing activities, we would hereby confirm that the captioned (sic) vessel is registered under Cambodia flag as of today and would grant our permission for Australian Authorities to board and carry out necessary inspections for the ship in accordance with the International Conventions and Regulations as applicable " (emphasis added) .

86 The letter was signed by the Chairman of "Cambodian Ship Registration Management Committee."

87 A deal of the evidence on the voir dire was concerned with the understanding of Mr Hurrell, Ms Leary and Mr Jones as to the nature of the "agreement or arrangement" or permission given, or entered into, by the Cambodian Government. Of course their understanding is not conclusive of whether such an agreement or arrangement is required by law existed to permit what occurred.

88 These persons were the only persons to have actually seen the letter or cable from the Cambodian Government's representative who gave oral evidence in the proceedings.

89 In respect of one submission from the accused that the cable was not necessarily or actually "authoritative" I conclude, given its appearance and the context of all the cables, that it was clearly a response to official approaches made to the Kingdom of Cambodia made by the Australian Government's representatives in Phnom Penh.

90 It purports to be forwarded from a relevant Cambodian Government official with what I would understand to be responsibility at least in relation to Cambodian ship registration. Thus I conclude that the letter was relevantly evidence of the terms of the "agreement or arrangement" between Cambodia and Australia.

91 Of course in considering this document I am also required to take into account all the cables that have been presented to this Court both before and after the boarding, including those cables emanating from Australian authorities setting out representations made to Cambodia, and also representations which appear to be made by Cambodian representatives in all cables are named and are largely unidentified. Noting the hearsay character of the representations and considering this material in conjunction with the only other document purportedly coming from the Kingdom of Cambodia, that is exhibit 22, which was created seventeen days after the Taruman was boarded, I am not of the view that there existed at the relevant time "an agreement or arrangement" with Cambodia which enabled the exercise of Australian jurisdiction over the Taruman as was being sought by the Australian Government.

92 The communication from the Cambodian Government of 19 August 2005 in my view is clear in its terms and is uncontradicted or qualified by any later communication. It is a very limited permission in its own terms. In fact its terms in my view were clearly understood by both Mr Hurrell and Ms Leary and representatives of the Australian Government communicating with the Kingdom of Cambodia after 19 August 2005.

93 Following upon that cable the Australian embassy on 23 August 2005 communicated to the Cambodian "Ministry of Foreign Affairs and International Cooperation" and sought to get specific permission for law enforcement agencies to act in accordance with Australian legislation and sought to inform Cambodia of "specific powers under Australian law". These powers included the power to search the ship and individuals, take possession of any weapons, restrain any individual on board the ship, detain the ship for as long as Australian authorities think necessary, and if an officer considered that a criminal offence had been committed under Australian law, cause the ship to be brought to a port or such other place as Australian authorities considered appropriate. Presumably these matters were in accordance with the terms of the Regulation referred to in s 185A Customs Act (Reg. 8, Customs (Interception of Vessels) Regulations 2001) or other provisions under that Act. It was asserted by the Australian Government representatives in communication with the Cambodian official that these powers were quite consistent with the "international conventions and regulations" referred to in the Cambodian cable to which I have referred. Australian officials prepared a Third Person Note (TPN) for approval and signing if need be by the Cambodian Government.

94 There is no reliable evidence, even taking into account exhibit 22, that the Cambodian Government acquiesced in this particularised request, approved it or consented to it. Certainly, there is no evidence the TPN was signed. Further, there is evidence within exhibit 22 that the representative of the Cambodian Government had in fact simply acquiesced in what occurred, assuming as I must in the light of the material available to me, that the Cambodian Governments were fully informed as to what occurred on 6 September 2005 and subsequently.

95 Australian authorities, I note, on 26 August 2005, speak in their cable of receiving in due course "a formal response" and hoping to receive "permission to exercise these (i.e. domestic) powers". On 2 September 2005 the Cambodian Government apparently "had agreed that the letter (I take that to be the relevant cable) provided sufficient powers for Australian authorities to take appropriate action against the Taruman" (emphasis added). The author of the Australian cable, not unreasonably concluded, "on the/that basis the need for Cambodian agreement on the specific powers was unclear". Consequently the Australian Government representative or representatives continued to make "representations". The Australian Government was still seeking a "positive response". None was formally forthcoming.

96 On 6 September 2005 a cable, again from Australian sources, reports continuing doubt as to the position and reported that an unnamed person, who I am meant to assume, and will for these purposes assume, is a Cambodian official of some rank or authority, had "considered that Cambodia would provide agreement to these specific powers once satisfied that they were consistent with international law. He said this may take a few days" (emphasis added). This cable was created approximately an hour before the boarding of the Taruman.

97 A cable of 7 September 2005 setting out the position at the time does not reveal the full picture that emerges from the inquiry that occurred before me.

98 The cable of 8 September 2005, reporting a meeting with an unnamed, unranked, Cambodian official, without details of the accuracy of the information provided to that particular official available to me, does not evidence on my view an agreement or arrangement to submit Taruman to Australian domestic law. At its highest it represents acquiescence at that time on the part of the Cambodian official unnamed, assuming that that person speaks for the Cambodian Government. Certainly there is no evidence from it of an arrangement or agreement that was required at the time of the boarding other than the permission to board in accordance with "International Conventions and Regulations".

99 The only "international law" brought to my attention of relevance to this issue appears to be that contained in the UNCLOS. Having regard to the UNCLOS, and particular Pt VII of that Convention, to which Australia was relevantly a signatory as at 6 September 2005, there was no power or authority for Australian officials to search the ship for evidence, to detain the vessel or its crew. Article 110 referred to in submissions was not relevant to the situation as both parties appear to agree. Neither of the parties have provided any other details of any relevant international law that touches upon this matter. Articles 87, 89, 91, 92, and 94, recognise the right at international law for a nation such as Australia to deal with a foreign flagged ship in accordance with such permission is as given by the sovereign state to which the ship is flagged. Paramount, reading all these articles together and in context, is the sovereignty of foreign vessels whilst on the high seas not subject to pursuit. (See in relation to pursuit, Article 111.)

100 At the time immediately before boarding, having regard to the evidence on the topic available from this inquiry, Mr Hurrell understood that the permission of the Cambodian Government did not extend beyond that set out in the relevant cable, although he believed it involved a power to board and "inspect". It fell short, in my view of his evidence, of a power to search for evidence of illegal fishing.

101 One of the questions raised by the Crown, in the course of submissions is; what power then existed in relation to the matter? He said, and I note that it was an observation made in a jocular fashion, that "surely it didn't extend solely to coming on board to have a cup of tea or a pink gin". The answer to the Crown's submissions might be seen, one might have thought, in the terms of s 185A(2) and the limitations of inspection therein contained, if that provision was relevant.

102 It matters not that Australian authorities might "know" that the ship is flagged to Cambodia. In fact information on board suggested it was not so registered at the time, of which nobody took any notice. Mr Hurrell understood, on my view of his evidence, that the permission of the Cambodian Government did not extend to further action such as searching and detaining the vessel the crew or evidence obtained. He had advice from the Attorney General's Department, provided by Ms Leary who was responsible to him, that the boarding party apparently "could board and inspect and nothing more". The word "inspect" is a matter that may need to be further examined at a later time. He understood that clarification was being sought from the Cambodian government and that it maybe available in a matter of a few days. This was consistent with the last cable that has come from Australian authorities presented to this Court, before the boarding actually occurred. He also knew that the weather in the area where Taruman and Oceanic Viking were located was deteriorating and boarding may not be possible for sometime afterwards, if at all.

103 He claimed that during the course of the OAG meeting, which occurred over a period of time for the boarding and subsequently, he was of the view that there was a power to undertake "limited examination of documentation to see if there was any other evidence that would confirm the illegal fishing allegation." This claim to my mind is at odds with the objective evidence available independent of him and current advice. He was of the view, he claimed, that once compliance with the terms of the agreement or arrangement of the Cambodian government had been met, the relevant officers on board could exercise powers under s185A and related provisions of the Customs Act including searching, seizing, evidence and detaining the vessel and directing it to port.

104 On the objective evidence available to me as I earlier indicated, I do not accept having regard to this particular provision, there was power for the relevant officers to submit the Taruman to the provisions of the Customs Act on the basis those provisions alone. What Mr Hurrell truly believed or genuinely understood may need to be considered later when I deal with the second application.

105 I note in passing that this was the first occasion, I am informed, that the Australian government through its officials have sought to exercise powers available under these provisions of the Customs Act. To my mind Mr Hurrell, in particular instances revealed in his evidence, revealed a lack of understanding of the relevant provisions in a range of ways which is self evident from the transcript and in my view he was somewhat unconvincing in his lack of recollection of the timing of events during the course of OAG meeting that he attended.

106 Ms Leary likewise understood that there were certain "restrictions", however these restrictions could be alleviated by permission from or "an agreement or arrangement" with the flag state of the vessel. As I understood her evidence she was of the view that no power could be exercised under the Customs Act without the authority of the flag state. Her understanding accorded with the permission revealed in the cables produced.

107 Having regard to the various communications to and from her and her oral evidence on the subject, she understood, as at the time of the boarding of Taruman, that in the context of the permission that had been given by the Cambodian government, Australian authorities could board and "inspect" and "nothing more". Of course where she and Mr Hurrell obtained the view that there was a power of inspection and the scope of that power and what it meant was not to be resolved at this point. I note in the evidence available to me that Ms Leary had written in an email at 9.21am on 6 September 2005, "We are working on the basis of advice from DFAT that the flag state has agreed to our boarding under international conventions but, as you point out, not further action or detention of the vessel".

108 This email was in reply to an email from a person I understand to be an AFMA officer sent 5 minutes earlier which said inter alia "Legal advice was clear. Although we think that the boat is forfeited we cannot take action on the high seas to board nor bring it to port in Australia for an investigation and take appropriate action under Australian law unless we have agreement from the flag state. To the best of my knowledge this has not occurred." Copies of these emails were sent to Mr Hurrell.

109 As I have earlier indicated, with that assessment from within government ranks I respectfully agree. Ms Leary's evidence as to her instructions to Mr Jones for boarding and inspection will need to be analysed later. Her evidence was that it was after that she had been advised of some irregularities in the documentation inspected, that officers on board could exercise powers under section 185A in the relevant regulation.

110 Suggestion has been made by the Crown that Mr Hurrell and thus those he directed had considered the issue of forfeiture (ie pursuant to s106A FMA) as relevant to the powers exercised in boarding, particularly based upon his evidence about what occurred during the OAG meeting before the boarding. As a matter of commonsense there was a belief that there had been illegal fishing that existed in the minds of Mr Hurrell and Ms Leary and some other members of OAG well before 6 September 2005. A body of evidence exists to show that at various times Mr Hurrell and his colleagues were taking advice as to the implications of this belief, during which the issue of potential forfeiture was discussed or must have been discussed. However there is no evidence that can be reliably acted upon that anybody with relevant authority turned their minds to the operation of s106A, or ss84 and 87 FMA, as relevant to any power to board and conduct investigations and seize items for evidence.

111 The terms of the "notes" of the OAG meeting (exhibit 18) confirm this to be so in my view. Although Mr Hurrell called them notes of discussion, not actual minutes, they were he said, a record of the meeting in "broadly correct", chronological order. In that regard I note the terms of the status report as set out in dot point form and particularly the terms of the dot point and the matters that are set out under Attorney General's advice appearing in the notes after the status report. In fact one might have thought the dot points under "Attorney General's Advice", in their terms, reflect advice occurring in circumstances following upon the investigations that had occurred after the boarding.

112 In any event, that advice, and other advice from other sources, assumed and referred to power of boarding and search etc to lie under the provisions of the Customs Act earlier noted. Forfeiture appears to have been at best, to quote Miss Leary's evidence "a parallel" issue.

113 I note in conclusion to this aspect of the matter that notes made by Miss Leary in relation to the outcome of the boarding, in the context of the conduct of the OAG meeting, suggest concern that there maybe some adverse Cambodian reaction to the events that had unfolded. This can be regarded as confirming, at least, her understanding of the limited character of the agreement or arrangement with Cambodia but may also reflect anticipation at that time of means of explaining a breach of any such arrangement or agreement should complaint had been made by Cambodia. I need not decide at this point whether SOLAS (Safety of Life at Sea) was simply a convenient cover or something else.

114 These observations having been made I do not believe in all the circumstances by regard to the basis upon which the relevant officers exercised their power to board, that the evidence establishes malafides on the part of the relevant investigators or enforcement officers as being an abuse of process such as to warrant a grant of a permanent stay of proceedings.

27/08/2007 - Renumbering of paragraphs - Paragraph(s) 84 - 114

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