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District Court 21 August 2006

R v Amoedo & Dominguez

[2006] NSWDC 187

Other
CRIMINAL LAW ABUSE OF PROCESS UNLAWFUL CONDUCT EVIDENCE ILLEGALLY OR IMPROPERLY OBTAINED SEIZURE ON THE 'HIGH SEAS'.

Citation: R v Amoedo & Dominguez [2006] NSWDC 187
Court: District Court of New South Wales
Date: 21 August 2006
Judge(s): Norrish QC DCJ

Background

Two accused, identified by their roles as the persons in charge of a foreign fishing vessel called the Taruman, faced prosecution under the Fisheries Management Act 1991 (Cth) for allegedly engaging in commercial fishing and having charge of a foreign boat equipped for fishing within the Macquarie Island Australian Fishing Zone (AFZ). The alleged offending occurred between approximately 25 and 27 June 2005, when the vessel was observed by a Royal New Zealand Air Force aircraft approximately 90 nautical miles south of Macquarie Island, well inside the AFZ.

Australian Customs Service officers and Australian Fisheries Management Authority (AFMA) officers subsequently located the Taruman on the high seas aboard the patrol vessel Oceanic Viking. They boarded the Taruman, gathered evidence, and apprehended the two accused. The vessel at the time of boarding was outside the AFZ, on the high seas.

The accused raised two preliminary applications before arraignment. The first, dealt with in this judgment, was an application for a permanent stay of all proceedings on the ground that the prosecution constituted an abuse of process, arising from what the accused contended was unlawful conduct by Australian authorities in boarding the vessel and bringing them within Australian jurisdiction.

  • Whether the boarding of the Taruman on the high seas by Australian authorities was lawful, by reference to three distinct potential sources of authority: ss 84 and 87 of the Fisheries Management Act 1991; the forfeiture provisions of s 106A of that Act; and an agreement or arrangement between Australia and Cambodia under s 184A(8) of the Customs Act 1901, combined with powers under s 185A of that Act.
  • Whether the conduct of Australian authorities in boarding the vessel, gathering evidence, and apprehending the accused amounted to an abuse of process sufficient to warrant a permanent stay of proceedings.
  • Whether the accused were brought within Australian jurisdiction through bad faith (mala fides) on the part of relevant investigators or enforcement officers.

Decision

The Crown advanced three bases to justify the boarding: the coercive powers under the Fisheries Management Act; the right to recover property forfeited to the Commonwealth under s 106A of that Act; and an agreement or arrangement with Cambodia authorising the boarding under the Customs Act. The court examined each basis carefully against the evidence of what the relevant officers actually understood and intended at the time.

On the question of the Customs Act agreement with Cambodia, the court found that while some form of agreement or arrangement may have existed, the evidence did not clearly establish that it authorised the boarding in the circumstances that unfolded. Miss Leary's own evidence suggested the forfeiture issue was treated as a "parallel" concern rather than as the operative basis for action, and notes from an Office of the Attorney-General meeting indicated that officers sought legal advice about the implications of the boarding only after it had occurred.

The court accepted that the precise legal basis upon which the relevant officers exercised their power to board was, at best, uncertain at the time. The officers appear to have relied primarily on Customs Act authority, and the forfeiture and FMA bases were not clearly turned to by anyone with relevant authority before the boarding took place. There was also evidence of some concern about potential adverse Cambodian reaction to the events, which the court noted might reflect an awareness of limitations on the arrangement with Cambodia.

Despite these findings, the court concluded that the evidence did not establish mala fides (bad faith) on the part of the investigators or enforcement officers. The absence of demonstrated bad faith meant the threshold for granting a permanent stay on abuse of process grounds was not met, and the application was refused.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A permanent stay of criminal proceedings on abuse of process grounds requires more than a finding that authorities acted on an uncertain or arguably insufficient legal basis; the evidence must establish bad faith (mala fides) on the part of the relevant officers.
  • The District Court declined to stay proceedings even where the precise statutory authority for a high-seas boarding was not clearly identified by officers before the boarding occurred, and where the legal basis was reconstructed or clarified only afterwards.
  • Under the framework examined in this case, three potential sources of authority were identified for boarding a foreign vessel on the high seas: coercive powers under the Fisheries Management Act 1991, forfeiture recovery provisions under that same Act, and international arrangements authorised by the Customs Act 1901. The court's findings turned on whether any of those bases was actually operative at the time, not merely available in theory.
  • A second, separate application to exclude the evidence obtained during the boarding under s 138 of the Evidence Act 1995 (on the ground that it was illegally or improperly obtained) was foreshadowed but not resolved in this judgment, which addressed only the stay application.
  • Expressions of concern by enforcement officers about potential diplomatic reaction from Cambodia were treated as relevant to understanding the officers' own appreciation of the limits of any bilateral arrangement, though the court did not find it necessary to characterise the Safety of Life at Sea (SOLAS) justification as a deliberate pretence.

Legislation and Cases Referenced

Legislation:
- Fisheries Management Act 1991 (Cth), ss 84, 87, 100, 100A, 101, 101A, 106A
- Evidence Act 1995 (NSW), s 138
- Customs Act 1901 (Cth), ss 184A, 185A
- Customs (Interception of Vessels) Regulation 2001 (Cth)
- Acts Interpretation Act 1901 (Cth)

Cases:
- Watson v AG (NSW) (1987) 8 NSWLR 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
- R v Raby [2003] VSC 213
- Project Blue Sky v 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 Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
- Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
- R v Lijo & Ors [2004] WAD 29