The evidentiary issues in prosecuting fisheries offences 

1. The evidentiary issues in
prosecuting fisheries offences
Katherine Hawes
(BA,LLB, MML, LLM, EdM,)
Principal Solicitor - Aquarius Lawyers
www.aquariuslawyer.com.au

2. Importance of Evidence
The story of Old man Mortin and the Fisheries Inspectors.
Aquarius Lawyers 2013

3. Crimes at Sea - Fishing

International fisheries laws differ from country to country.

Crime will occur in environments where regulations are difficult to
enforce and where the risk of prosecution and punishment is seen
as remote.

Not every instance of non compliance can be prosecuted. A
balance needs to be struck between having sufficient numbers of
prosecutions to achieve a deterrent effect and complying with
prosecution policies in selecting cases to pursue.

Only those cases were there is reliable evidence will proceed to a
prosecution.
Aquarius Lawyers 2013

4. Aquarius Lawyers 2013

5. Combating Crimes at Sea

Role of Observers

Role of Technology
Aquarius Lawyers 2013

6. What are Observer Programs?
The use of the word is important as it implies to oversee rather than
to inspect or enforce conservation measures.
There are two types of observer programs that can provide
information in support of a prosecution.
(a) Domestic that is those that operate nationally within the coastal
states EEZ and are generally a requirement of obtaining a fishing
licence for that EEZ. Any offence committed whilst in the EZZ or
territorial waters of the coastal state will be subject to the laws of
the coastal state.
(b) International that is those operated RFMO’s that is placing any
RFMO national observer onto a vessel within the RFMO area
including the high seas.
Aquarius Lawyers 2013

7. Observers and Prosecutions

The collection of evidence by national observer
programs can be prosecuted by the national state under
the coastal states fishing laws. The evidence collected
must comply with the relevant evidentiary rules of the
coastal state.

The collection of evidence from international observer
program to support a prosecution is even more complex
as there a different jurisdictions involved that may have
different rules of evidence.
Aquarius Lawyers 2013

8. Observers and Prosecutions



Observers generally have limited enforcement role
despite being on the front line. Most legislation does not
support the role of the Observer as an enforcement
officer.
However that does not mean the information collected
can not be used in a prosecution. It is important that any
evidence that is collected by the observer is admissible
in court.
The evidence must be reliable, relevant and lawfully
collected by the observer in order to be admissible in
Court. At times doubt can be cast on the observer
evidence and the evidence is rejected by the court as not
being reliable.
Aquarius Lawyers 2013

9. Observers and Prosecutions

The evidence must be reliable, relevant and lawfully collected
by the observer in order to be admissible in Court. At times
doubt can be cast on the observer evidence and the evidence
is rejected by the court as not being reliable.

Problems with Observers as witnesses;
(a) Bias
(b) Reliability (c) Measuring standards used
(d) High turn over rate
(e) Lack of standardisation
(f) time between offence and notification of prosecution
Aquarius Lawyers 2013

10. Observers and Prosecutions
The types of offences in which Observer data
has been successfully used as evidence
include;
 Log book validation
 Fishing Gear Checks
 Documentation Checks
 Sighting of Unlicensed Vessels
Administrative rather than criminal offences?
Aquarius Lawyers 2013

11. Technological Observers-VMS position
reports, EM data and DNA evidence
The types of offences in which technology
data has been successfully used as evidence
include;





Unlawful entry into a closed area
Failure to properly maintain a functioning VMS
transponder
Illegal fishing in a closed area
Tampering with transponder
Providing false information to fisheries authorities
Aquarius Lawyers 2013

12. Acceptance of EM data

Australian case using EM data for a
prosecution using video footage.
Aquarius Lawyers 2013

13. Acceptance of EM data

The convicted men, crew members aboard two
commercial Southern Bluefin Tuna tow boats, were
convicted in April 2012 and ordered to pay fines totalling
$22,000.

AFMA investigated the matters after the actions of crew
members were detected on footage from video and other
electronic recordings. The footage was seized by AFMA
officers during at-sea inspections of fishing boats.
Aquarius Lawyers 2013

14. Acceptance of VMS data



To succeed in a prosecution the court must
accept the accuracy and reliability of VMS
data
A review of European cases which have
relied upon the VMS data –courts have been
happy to accept as reliable.
In UK there was a challenge in one case
where the accuracy of the VMS data was
challenged. Expert evidence was led
regarding the reliability of the VMS data,
which was accepted by the Court.
Aquarius Lawyers 2013

15. Acceptance of VMS data



In Australia there is limited case law regarding VMS.
(2009) AFMA v Captain Smyth, VMS was used as
the only evidence of fishing in a closed area.
A number of errors by the prosecution – failed to
lead evidence as to the technical nature of how
VMS works in polling the position of vessels. In
addition did not prove the accuracy of the device
attached to this ship and no independent checking
of the accuracy of the device.
Aquarius Lawyers 2013

16. Does VMS data alone prove “fishing”?


VMS data to date has not bee accepted in
court proceedings as evidence by itself of
illegal fishing in a closed area or a closed
period.
VMS is only designed to show the position of
the vessel
Aquarius Lawyers 2013

17. New Evidentiary Tools - DNA
Evidence



Last year in QLD a fisherman was convicted of
poaching mud crabs using DNA evidence
The DNA tests proved that the mud crabs came
from QLD and not the NT as claimed by the
fisherman.
Important for two reasons – the use of technology to
assist in prosecution case and the cost saving of
court time as when presented with the DNA
evidence changed plea to guilty.
Aquarius Lawyers 2013