R v Amoedo & Dominguez [2006] NSWDC 187

R v Amoedo & Dominguez [2006] NSWDC 187

The stay was refused because, although the Court was not satisfied that there was a relevant agreement or arrangement with Cambodia sufficient to invoke the Customs Act powers and held that s84 Fisheries Management Act 1991 provided no power to board, detain or search absent pursuit, s106A Fisheries Management Act 1991 as construed in Olbers meant the Taruman was property of the Commonwealth from the time of the alleged offences. Commonwealth officers were therefore entitled to board and seize the vessel and equipment and direct the vessel back to the Australian EEZ. In those circumstances the conduct was not so egregious, and did not create the fundamental defect or abuse of process...

Jurisdiction
Australia
Judgment Date
21 August 2006
Procedural Posture
Criminal Prosecution for Alleged Fisheries Management Act Offences / Application for Permanent Stay of Proceedings Before Trial; Alternative Foreshadowed Application to Exclude Evidence Under S138 Evidence Act 1995
Outcome
Application for permanent stay of proceedings refused.
Legal Topics
['permanent Stay of Proceedings' 'abuse of Process' 'unlawful Boarding and Seizure on the High Seas' 'illegally or Improperly Obtained Evidence' 'australian Fishing Zone' 'forfeiture of Foreign Boat' 'powers of Officers Under Fisheries and Customs Legislation']
['criminal Law' 'evidence' 'fisheries Law' 'statutory Interpretation' 'public Law'] ['permanent Stay of Proceedings' 'abuse of Process' 'unlawful Boarding and Seizure on the High Seas' 'illegally or Improperly Obtained Evidence' 'australian Fishing Zone' 'forfeiture of Foreign Boat' 'powers of Officers Under Fisheries and Customs Legislation']

Case Brief

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Procedural Posture

Criminal Prosecution for Alleged Fisheries Management Act Offences / Application for Permanent Stay of Proceedings Before Trial; Alternative Foreshadowed Application to Exclude Evidence Under S138 Evidence Act 1995

Legal Issues

  1. 1 ['Whether the prosecution should be permanently stayed as an abuse of process because Australian authorities allegedly acted unlawfully on the high seas in boarding, searching and directing the Taruman to Australia.' 'Whether ss184A and 185A of the Customs Act 1901 and the Customs (Interception of Vessels) Regulation 2001 authorised the boarding and subsequent exercise of powers on the basis of an agreement or arrangement with Cambodia.' 'Whether s84 of the Fisheries Management Act 1991 authorised boarding, search and detention of the Taruman on the high seas absent pursuit from the Australian Fishing Zone.' 'Whether s106A of the Fisheries Management Act 1991 meant the Taruman and equipment were forfeited to and became property of the Commonwealth from the time of the alleged offences.' "Whether any illegality or impropriety in the authorities' conduct was so egregious as to justify the exceptional remedy of a permanent stay."]

Ratio Decidendi

The stay was refused because, although the Court was not satisfied that there was a relevant agreement or arrangement with Cambodia sufficient to invoke the Customs Act powers and held that s84 Fisheries Management Act 1991 provided no power to board, detain or search absent pursuit, s106A Fisheries Management Act 1991 as construed in Olbers meant the Taruman was property of the Commonwealth from the time of the alleged offences. Commonwealth officers were therefore entitled to board and seize the vessel and equipment and direct the vessel back to the Australian EEZ. In those circumstances the conduct was not so egregious, and did not create the fundamental defect or abuse of process...

Court Disposition

Application for permanent stay of proceedings refused.

Orders

  • ['There be no stay of proceedings.']