Enforcement of Fishing Laws

Keeping it Legal -
Evidence and New
Enforcement Tools
Katherine Hawes - Principal Solicitor
Aquarius Lawyers
www.aquariuslawyers.com.au

Aquarius Lawyers 2015
Importance of Evidence
 The legacy of Billy the Pet Mub Crab.

Crimes at Sea – the new challenge
 Combating crime is a challenge for the state, national and
international regulators.
 Crime will occur in environments where regulations are difficult to
enforce and where the risk of prosecution and punishment is
seen as remote.
 Clearly, not every instance of non compliance can be prosecuted
and 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.

Crimes at Sea – IUU Fishing
 International fisheries laws differ from country
to country.
 Some laws are stricter than others, while
others lack the strength of protecting the
waters to its potential.
 Fisheries can be plagued with corruption and
port state issues.

Introduction to Evidence
The heart of making a prosecution case

Objectives
 By the end of the course you will be familiar
with;
 the importance of evidence to create a
prosecution case
 the collection and storage of evidence
 the standard of proof required

Objectives
By the end of the course you will know in
relation to the law of evidence:
 Hearsay
 Opinion
 Relevance
 Circumstantial evidence
 Electronic/Scientific evidence
 Expert witness

The problem with fishing offences
 Difficulties have been identified in the literature, in
prosecuting certain kinds of more serious,
environmental offences through the courts. It has
been claimed that in Canada prosecuting lawyers
are not ‘especially experienced, effective, or
predictable in obtaining convictions related to
fisheries crime’.
 Even where there is a successful prosecution, there
may be reluctance to impose as ‘severe penalties,
such as license suspensions and seizures of fishing
equipment, to deprive fishers and those dependent
upon them of an economic livelihood’ (McMullan &
Perrier 2002: 703).

Standard of Proof
 The standard of proof is the measurement of
evidence required to prove your case to an
independent person who will judge the evidence.
 Beyond reasonable doubt – criminal standard
burden of proof
 Balance of probability – civil standard
 Strict Liability Offences – statute based offences
with no defence

Evidence
 There is no case without evidence and no
conviction unless the evidence proves the
offence
 The evidence must tell the story that supports
your case theory
 Material that will persuade the Court
 Use the best evidence available
 Must prove the elements of the offence

What is Evidence?
 Evidence is the means sanctioned by the
Rules of Court, of ascertaining, in judicial
proceeding, the truth respecting a matter of
fact. As a rule, the rules of evidence are the
same in all courts unless provided otherwise.

What are the Types of Evidence
Admissible in Court?
 Evidence must be relevant and competent.
Relevant means that it may establish directly
or indirectly the existence or non-existence of
the facts in issue. Competent means that it
is not excluded by a rule of law for the
purpose for which it is offered.

Rules of Evidence
 The purpose of the rules of evidence are to
ensure that only the best evidence available
is used to convict.
 To ensure fairness to the accused

Rules of Evidence
 The rules of evidence are the rules that regulate the
manner in which questions of fact may be determined in
judicial proceedings. The aim of most court proceedings
is to determine two different types of issues:
 Firstly, a court has to determine whether the facts on
which a charge is laid did actually happen. These are
questions of fact.
 Secondly, the court has to determine, if they did
happen, what their legal consequence is. These are
questions of law.
 The rules of evidence are generally divided into three
parts:
 1. What facts may or may not be proved?
 2. What sort of evidence must be given by which a fact may
be proved?
 3. By whom, and in what manner, must the evidence be
produced by which a fact is to be proved?

Types of Evidence
 There are different types of evidence:
 Direct evidence
 Real evidence
 Documentary evidence
 Expert evidence
 Circumstantial evidence
 Hearsay evidence

What type of evidence is needed for the
prosecution of fishery cases?
 Documentary Evidence
 Pictures
 Seizure Receipt (Receipt for Confiscated Fish, Receipt for Impounded Vessel)
 Apprehension Report
 Report on the Results of Fish Sample Examination
 Receipt of Fish Sample for Laboratory Examination
 Certificate from Licensing Agency regarding absence of any fishing permit/license
 Affidavits of Witnesses
 Certificate of Custody from agency/institution having custody of seized fishing
paraphernalia
 Maps, if any
 Non-Documentary
 Confiscated Fish
 Explosives, Poisonous Substances
 Fishing Vessel, Gear and Paraphernalia
 Testimonies of Witnesses and Apprehending Officers

Importance of Maintaining Integrity
of Evidence
 Inspectors involved at any stage of surveillance,
audit or investigation may be required to gather
evidence in order to provide proof of a contravention
of a safety rule. In the process of gathering
evidence, they will handle various articles that may
be required as evidence (in the form of exhibits) in
various proceedings. (These articles may consist of
documents or aircraft components or material.) It is
important that the integrity of these potential exhibits
be preserved.

TIPS on Handling Non-Documentary
Evidence (Sample)
 Fish Samples must be preserved properly
and be immediately examined by licensed
laboratory technicians or fishery examiners.
 Fish samples taken for laboratory
examination must be retrieved by the
accused (F/B Robinson case) to avoid any
attack on the integrity of evidence.

TIPS on handling Documentary Evidence
It is your role to ensure that documents such as log books, or other documents that
may be required as exhibits in court are handled carefully so as to ensure that
they are not changed in any way otherwise they may not become evidence.
 In particular you should ensure:
 that such documentary exhibits are not written on, stapled, torn, folded, pinned or
mutilated in any way.
 that such documentary exhibits are not placed in a position where impressions from
writing on overlaying paper, will be left on the documentary exhibit—e.g. writing on an
envelope after the document has been placed inside. The impressions on a document
can be an important part of forensic document examination.
 that a document is placed in an envelope as soon as possible. There are two reasons
for this:
􀂁 It prevents damage to the document itself
􀂁 In the unlikely event that it may be necessary, it preserves any fingerprints that may be on the
document.
 every effort to retain possession of original documents. If it is not possible to take
possession of original documents it is important that inspectors arrange for them to be
photocopied. If a document is photocopied:
 􀂁 Sign and date the photocopy, preferably on the back of the photocopy;
 􀂁 Wherever possible, try to arrange for the person retaining the original document to sign the
photocopy as being a true copy of the original

Notes make evidence
 When an event occurs, you may often think it is unnecessary to
make a written note of the event. After an event occurs,
preparing a file note may seem to be unnecessary paperwork.
However, experience has shown the value of such records in
subsequent proceedings or deliberations. When an inspector is
called to account for his or her actions, possibly a year or more
after the event, the value of such notes becomes self-evident.
 The purpose of making notes, either in an official notebook or as
a file note, is to enable inspectors to refresh their memory at
some later date or justify their actions when called upon to relate
a set of circumstances.

And when it goes wrong, ask Officer Butt!
 Canadian case of R v Victor Barrett and others.
The accused were charged with having sold “blueback
seal pelts” in March 1996. The trial commenced in
July 2008. The prosecution relied upon statements
made by the fisheries officer, Officer Butt. Officer
Butt interviewed all 4 accused but failed to take any
notes of the conversations relying only upon the
standard information form outlining the charges. The
prosecution sort to introduce evidence of a
confession given to Officer Butt by the accused over
the telephone at a later date. The defence
challenged the admissability of the evidence.

And when it goes wrong, ask Officer Butt!
 Here is what the Judge stated;
“ Officer Butts ability to present accurate
evidence has been compromised by his
failure to make any notes concerning his
contact with each of the accused. I am not
satisfied that I can rely on is recollections
from 1996 or that he is able to distinguish
between what was aid or not said to each of
the accused.”

Bye Bye Butt’s Evidence
The Judge ruled that the evidence was not
admissible and the case was dismissed.
“ …only that there is a complete lack of reliable
evidence upon which any conclusion can be
reached. This is important because the
Crown must prove beyond reasonable doubt
that the statements were made voluntarily
and the lack of detail in Officer Butt’s
evidence makes this impossible for the
Crown to do so.

Combating IUU – the new challenges
 Role of Fisheries Observers
 Role of Technology

What are Observer Programs?
 There are two types of observer programs,
(a) 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)that carried out by RFMO’s that is placing any RFMO national
onto a vessel within the RFMO area including the high seas.
Some RFMOs (for example, the CCAMLR, IATTC, NAFO, and
WCPFC) have adopted international observer schemes under
which observers must be placed on board fishing vessels.

Role of Observers
 The use of the observer programs can have a dual
role of ensuring compliance with fisheries laws, but
can also be used to provide evidence in support of
any prosecution for fisheries violations.
 The evidence collected by the observer is only
useful to a prosecution if it is admitted into evidence
by the Court. It is this process which has a number
of hurdles for the use of observers as prosecution
witnesses.

Observers and Prosecutions
 In Canadian programs, observers are
directed to point out compliance concerns,
giving fishers the opportunity to correct
problems.
 Observers generally have limited
enforcement role despite being on the front
line
 Observer reported evidence is difficult to use
in a prosecution case.

Observers and Prosecutions
 It is important that any evidence that is collected by the observer
is admissible in court.
 There are a number of observer programs both national and
international.
 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 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.
 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.

Technological Enforcement Tools
the way ahead for prosecutions
 VMS
 Drones
 Onboard Video Surveillance
 DNA testing

Technological Observers-VMS position
reports and DNA evidence
The types of offences in which VMS 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

Acceptance of VMS data
 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.

 In Sweden the master of the Tor-On was
charged with deliberately providing false
logbook information
 The master alleged that the Swedish VMS
system was inaccurate and unreliable. He
argued that the VMS printouts showing the
tracks of the vessel should not be accepted
as evidence by the court.

 The court accepted the evidence of the
Fisheries Board Officer who was responsible
for the routine operation of the VMS
 The court stated “the relation between the
data provided and the general presentation in
such that there is no grounds for questioning
the accuracy of the information”

 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.

Defence challenges to VMS data
 The value of VMS position reports depends
upon the verifiability of the data. Is it
accurate and reliable evidence?
 To date the court has accepted the VMS data
as accurate and reliable evidence as to the
position of the vessel

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

Video Surveillance – The New
Prosecution Tool
 This video led to seven fishermen
being convicted for crimes
associated with the illegal fishing of
Southern Bluefin Tuna, the shooting
of protected seabirds and littering at
sea. The fishermen were fined a
total of $22,000.
 Amendments to the Fisheries
Management Act 1991 strengthen
the ability of the Australian Fisheries
Management Authority to hold
licence holders liable for the actions
of their crew.
 The new legislation also includes
amendments to support the use of
electronic monitoring on fishing
boats for data collection and
compliance purposes

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.

Drones on the Great Barrier Reef
 There is a pilot program to use drones to
monitor illegal fishing on the Great Barrier
Reef.
 Still untested as evidence in court
proceedings.

The Future
 Laws that are not enforced are like shark
without teeth – look scary but no one would
pay attention
 The future relies on strong enforcement
combined with education.

Enforcement of Fishing Laws

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