R v Amoedo & Dominguez

R v Amoedo & Dominguez - [2006] NSWDC 187 - NSWDC 2006 case summary — Zoe

[10]

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.

[44]

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.

[86]

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 "

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