Australian Fisheries Management Authority v Su [2009] FCAFC 56

FEDERAL COURT OF AUSTRALIA

Australian Fisheries Management Authority v Su [2009] FCAFC 56

ADMIRALTY – foreign fishing vessel equipped for fishing seized inside the Australian Fishing Zone (AFZ) liable to be forfeited to the Commonwealth for offence under Fisheries Management Act 1991 (Cth) – offence of strict liability – defence available under s 9.2 Criminal Code (Cth) – defence if vessel was in the AFZ as a result of a mistaken but reasonable belief about facts which, had they existed, would have meant that the conduct would not have constituted offence – finding that Master mistakenly thought that a red line on the GPS represented boundary of AFZ and positioned vessel north of the red line – whether mistake of law or mistake of fact – whether Master had an actual mistaken belief – whether primary judge asked the wrong question in considering whether it was reasonable for Master to proceed on mistaken belief, rather than whether the belief was reasonable CRIMINAL LAW – offence of strict liability under Fisheries Management Act 1991 (Cth) – defence available under s 9.2 Criminal Code (Cth) – defence of mistaken but reasonable belief about facts which, had they existed, would have meant that the conduct would not have constituted offence – mistaken but reasonable belief that red line on GPS represented AFZ boundary, so mistaken but reasonable belief that vessel positioned above red line was outside AFZ – whether mistake of law or mistake of fact Criminal Code (Cth) s 9.2 Fisheries Management Act 1991 (Cth) ss 4, 100, 101, 106A, 106G Seas and Submerged Lands Act 1973 (Cth)

Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 cited Fox v Percy (2003) 214 CLR 118 cited Olbers Co Ltd v Commonwealth of Australia (2004) 136 FCR 67 cited Ostrowski v Palmer (2004) 218 CLR 493 distinguished Paterson v Paterson (1953) 89 CLR 212 cited Pearce v Stanton [1984] WAR 359 considered Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 cited State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 cited Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 cited