Mei Ying Su v Australian Fisheries Management Authority No 2 [2008] FCA 1485

Mei Ying Su v Australian Fisheries Management Authority No 2 [2008] FCA 1485

AFMA failed to establish on the balance of probabilities by clear and cogent evidence that the Mitra was being used for commercial fishing in the Australian fishing zone. The VMS data showed speeds inconsistent with successful trawling during the relevant period, and the observations of wet nets and fish did not prove recent fishing in the zone. AFMA also failed to negative the defence of mistake of fact: the Master actually and reasonably believed that the red line shown on the GPS was the Australian fishing zone border, that mistake concerned the physical location of the border and was a mistake of fact, and in the circumstances it was reasonable for him to rely on the GPS rather than...

Jurisdiction
Australia
Judgment Date
03 October 2008
Procedural Posture
Civil Proceedings Seeking Declarations and Orders That Seized Foreign Fishing Vessel and Seized Things Were Not Forfeited Under the Fisheries Management Act 1991 (cth) and Should Be Returned / Reasons for Judgment and Orders After Hearing
Outcome
Declarations and orders made in favour of the applicants; seized things declared not forfeited and ordered to be returned, with compensation issues adjourned.
Legal Topics
['strict Liability Offences' 'mistake of Fact' 'mistake of Law' 'foreign Fishing Vessel Forfeiture' 'australian Fishing Zone' 'onus and Standard of Proof' 'civil Forfeiture Proceedings']
['criminal Law' 'admiralty' 'fisheries' 'administrative Enforcement' 'evidence'] ['strict Liability Offences' 'mistake of Fact' 'mistake of Law' 'foreign Fishing Vessel Forfeiture' 'australian Fishing Zone' 'onus and Standard of Proof' 'civil Forfeiture Proceedings']

Case Brief

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Procedural Posture

Civil Proceedings Seeking Declarations and Orders That Seized Foreign Fishing Vessel and Seized Things Were Not Forfeited Under the Fisheries Management Act 1991 (cth) and Should Be Returned / Reasons for Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Who bore the onus of proof and what standard of proof applied to whether offences were committed and whether the mistake of fact defence was negatived.' 'Whether the Mitra was being used for commercial fishing while it was in the Australian fishing zone.' 'Whether the Master had a mistaken but reasonable belief about his location for the purposes of s 9.2 of the Criminal Code.' "Whether the Master's mistake was a mistake of fact or a mistake of law." 'Whether the seized things were forfeited under s 106G of the Fisheries Management Act 1991 (Cth).']

Ratio Decidendi

AFMA failed to establish on the balance of probabilities by clear and cogent evidence that the Mitra was being used for commercial fishing in the Australian fishing zone. The VMS data showed speeds inconsistent with successful trawling during the relevant period, and the observations of wet nets and fish did not prove recent fishing in the zone. AFMA also failed to negative the defence of mistake of fact: the Master actually and reasonably believed that the red line shown on the GPS was the Australian fishing zone border, that mistake concerned the physical location of the border and was a mistake of fact, and in the circumstances it was reasonable for him to rely on the GPS rather than...

Court Disposition

Declarations and orders made in favour of the applicants; seized things declared not forfeited and ordered to be returned, with compensation issues adjourned.

Orders

  • ['A declaration that the seized things (as that term is defined in the Amended Statement of Claim) dated 30 April 2008 are not forfeited pursuant to section 106G of the Fisheries Management Act 1991 (Cth).' 'The seized things as so defined be delivered up and returned to the applicants.' 'To the extent that the...