Ministry of Fisheries v Tukunga

IN THE DISTRICT COURT
AT WELLINGTON
CRI-2005-085-6992 & 6989

MINISTRY OF FISHERIES
Informant

v

SEKOPE TUKUNGA AND GLEN JOHN BOYES
Defendants

Hearing: 9 August 2006
Appearances: Mr G Burston for Informant
Mr R Anderson for Tukunga
Mr A G Stallard for Boyes
Judgment: 30 March 2007

JUDGMENT OF JUDGE T J BROADMORE ON PRELIMINARY ISSUES

Introduction

[1] The background to these charges, as set out in the next five paragraphs, is in substance taken from the informant’s submissions, for which I am gratefuL

[2] The defendant Boyes is a New Zealand citizen. The defendant Tukunga is a Tongan citizen with a significant connection with New Zealand and there is an issue as to whether he is a New Zealand national. The vessel involved, SZAP5 (the vessel), is registered in the Cook Islands. It does not fly the New Zealand flag and is not registered under the Ship Registration Act 1992.

[3] Boyes and Tukunga are charged with offences pursuant to s 113A of the Fisheries Act 1996, namely that they took or transported fish in the national fisheries jurisdiction of Australia other than in accordance with the laws of that jurisdiction. (In this judgment, all references to s 113A are references to that section of the Fisheries Act.)

[4] The consent of the Solicitor-General (acting on delegation from the Attorney-General) to initiate prosecution against the defendants was provided on 5 October 2005. Informations were then laid in the Wellington District Court on 11 October 2005.

[5] The charges relate to fishing activity of the vessel when it was fishing pursuant to a high seas fishing permit (issued by the Government of the Cook Islands) in the area of the Lord Howe Rise, adjacent to the boundary of the Australian Fishing Zone, in November and December 2003. The defendant Tukunga was the master of the vessel. The defendant Boyes was, in the informant’s view, Tukunga’s “alternate skipper”, responsible for fishing activity of the vessel when Tukunga was not on duty. The significance and legal meaning of the term “alternate skipper” may require debate at some future time, but it has not as yet been identified as an issue for consideration.

[6] Essentially the informant alleges that, otherwise than under and in accordance with the laws of Australia, the defendant:

(1) Boyes transported fish within the Australian Fishing Zone between 1400 and 1700 on 23 November 2003 (CRN 05085501900);

(2) Boyes took fish within the Australian Fishing Zone between 2200 and 2359 on 24 November 2003, namely alfonsino and boarfish (CRN 05085501901);

(3) Boyes transported fish within the Australian Fishing Zone between 0600 and 1300 on 26 November 2003 (CRN 0585501902)

(4) Boyes transported fish within the Australian Fishing Zone between 2033 on 30 November 203 and 0100 on 1 December 2003 (CRN 05085501903);

(5) Boyes transported fish within the Australian Fishing Zone between 0200 and 0300 on 1 December 2003 (CRN 05085501904);

(6) Boyes took fish within the Australian Fishing Zone between 0300 and 0400 on 1 December 2003, namely alfonsino, bluenose and boarfish (CRN 05085501905);

(7) Boyes and Tukunga transported fish within the Australian Fishing Zone between 1000 on 5 December and 0400 on 6 December 2003 (CRN 050801906-907); and

(8) Tukunga transported fish within the Australian Fishing Zone between 2300 on 5 December and 0400 on 6 December 2003 (CRN 05085501908).

[7] It requires little imagination to realise that, at least at first sight, the charges raise questions of international and public law, and of the extra-territorial jurisdiction of the New Zealand Parliament and this Court to legislate for and investigate them.

[8] As the answers to such questions had the potential to be decisive of the charges, or at least to narrow the areas in which evidence might be required, the parties agreed that the first stage of the hearing of the charges should be concerned with the investigation of them, with evidence then to follow if and to the extent required. This approach is permissible: Black v Fulcher [1988] 1 NZLR 417 (CA) and Attorney-General v Otahuhu District Court [2001] 3 NZLR 740 (CA). A limitation on proceeding in this way is that there can be no appeal until the hearing is completed, unless of course the charges are dismissed at the preliminary stage.

[9] In the course of conferences prior to the commencement of the hearing, counsel for the parties reached agreement on the preliminary legal issues to be addressed; and by the start of the preliminary hearing Mr Burston, counsel for the informant, was able helpfully to group the issues into five broad categories as follows:

I. The nationality issues

(a) Whether for the purposes of s 113A, where the defendant is a “New Zealand national”, an offence is only committed if fish is taken or transported on “a ship that is registered under the Ship Registration Act 1992 or that flies the New Zealand flag”?

(j) Is a person who holds a foreign passport but who resides in New Zealand and holds permanent New Zealand residency a “New Zealand national” for the purposes of s 113A?

(k) In order to determine whether, at the relevant time, Mr Tukunga was a New Zealand national for the purposes of s 113A, is the question the Court should ask, “At the relevant time, had Mr Tukunga been granted, or was he deemed to have been granted, a resident’s permit under the Immigration Act 1987?”

(e) Does the fact that the defendants are jointly charged in respect of one information faced by Mr Boyes mean that if Mr Tukunga is not found to be a New Zealand national then the defendant Boyes cannot be convicted of that information?

II. The substantive offence

(f) Is an offence against s 113A a strict liability offence?

III. The extra-territorial jurisdiction issues

(d) Does the prosecution need to prove that an offence has been committed against the laws of Australia by proving that the defendants have been convicted in Australia, before a New Zealand Court may find the charge proved?

(g) Must the prosecution prove that the defendants’ actions were contrary to Australian law?

(h) Must the prosecution prove that there is an Australian offence which specifically prohibits transporting fish?

IV. The Bill of Rights issues

(b) Is there an issue of double jeopardy, or breach of s 26(2) of the New Zealand Bill of Rights Act 1990 (henceforth NZBORA), which prevents the Ministry of Fisheries prosecuting the defendants under s 113A because they are potentially liable to be prosecuted for the same fishing activities in Australia?

(c) Does the charge under s 113A give rise to a breach of s 25(f) of the New Zealand Bill of Rights Act 1990 when it is alleged that the defendant has committed an act, otherwise than under and in accordance with the laws of a foreign jurisdiction?

V. Duplicity

(i) Are the informations bad for duplicity?

I The nationality issues

(a) New Zealand national/New Zealand ship - both or either?

[10] The first of the nationality issues is primarily a matter of construction. Section 113A provides as follows:

113A All fishing within foreign fishing jurisdiction to be authorised

(1) No New Zealand national, and no person using a ship that is registered under the Ship Registration Act 1992 or that flies the New Zealand flag, may take or transport fish, aquatic life, or seaweed in the national fisheries jurisdiction of a foreign country unless the fish, aquatic life, or seaweed is taken or transported under, and in accordance with, the laws of that jurisdiction.

(2) Every person who contravenes subsection (1) commits an offence and is liable to the penalty set out in section 252(3).

[11] As the informant accepts that the vessel is not within the section, for the prosecution to succeed the informant must establish that the first part of the section must be read disjunctively - that “and” in the first line means “or”.

[12] The defendants argue for a conjunctive interpretation.

[13] At the grammatical level, the defendants refer to the commas after the end of each relevant phrase — after the word “national” in the first line, and the word "flag” in the third line. They say that the grammar indicates two separate requirements, linked by the word “and”, both of which must, by virtue of the word “and ", be made out in order for a prosecution to succeed.

[14] The defendants note that the explanatory note on the introduction of the bill containing what became s 113A, uses the word “or”. Against that background, they argue that the use of the word “and” in the clause itself gives rise to confusion as to what was intended, and they say that it is not for the Court to resolve the confusion.

[15] The defendants also refer to the drafting of s 113E, which formed part of the same package of amendments to the Fisheries Act which came into force in May 2001. Section 113E(1) provides as follows:

(1) No New Zealand national may use a vessel that is not registered under the Ship Registration Act 1992, or a tender of that vessel,—

(a) to take (by any method), on the high seas, any fish, aquatic life, or seaweed for sale, except in accordance with an authorisation issued by a state to which subsection (2) applies; or

(b) to transport any fish, aquatic life, or seaweed taken on the high seas, unless that fish, aquatic life, or seaweed was taken in accordance with an authorisation issued by a state to which subsection (2) applies.

[16] The defendants argue that this section, which (in contrast to s 113A, deals with fishing on the high seas), clearly requires proof by the prosecution that a person charged is both a New Zealand national and that the vessel is registered under the Ship Registration Act. But, the defendants assert, there seems to be no reason why that distinction should make any difference to the classes of people who may be charged in respect of conduct proscribed under the two sections.

[17] The defendants also point out that the comparable Australian legislation, the Fisheries Management Act 1991 (Cwth), proscribes only the use of an Australian vessel without reference to the nationality of the user. Put another way, the Australian legislation relevantly makes no specific reference to Australian nationals. The significance of the comparison is that both the Australian and the New Zealand legislation was introduced to give effect to the United Nations Implementing Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 (Fish Stocks Agreement). This appears from the affidavit of Ms Ridings, filed on behalf of the informant. The Fish Stocks Agreement requires a state party merely:

to ensure that vessels flying its flag do not conduct unauthorised fishing within areas under the national jurisdiction of other states.

[18] The defendants’ argument is therefore, in summary, that the natural reading of s 113A (supported by a comparison with s 113E) is a conjunctive one, requiring the prosecution to establish in any particular case both that the defendant is a New Zealand national and that he or she is using a New Zealand ship; that the Fish Stocks Agreement does not oblige states party to regulate the conduct of their nationals on foreign ships; and that the Australian legislation is evidence of that limited requirement.

[19] The informant argues for a disjunctive construction, relying both on the natural meaning of the words used, and the international law context.

[20] As to a natural meaning, the informant submits that:

The use of the word “and” is the natural use of language that makes it clear that a person who falls into either class of person liable to the offence provision will be caught by it.

and:

If it were intended to apply only to New Zealand nationals using a New Zealand flagged/registered ship, the words “and no person” would have been unnecessary.

and:

If it were intended to apply only to people [of whatever nationality] using a New Zealand flag/registered ship, then the words “no New Zealand national” would have been unnecessary.

[21] As to the international context, the informant points out that Article 117 of the United Nations Convention on the Law of the Sea (1982) (UNCLOS) requires states to take measures for their respective nationals for the conservation of the living resources of the high seas; and points to a consistent pattern in subsequent international instruments encouraging states parties to take measures in respect of offending by their own nationals.

[22] These instruments include not merely the Fish Stocks Agreement, but also a voluntary instrument adopted by the Food and Agriculture Organisation of the United Nations (FAO) — the International Plan of Action to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fishing (International Plan of Action).

[23] For present purposes the following provisions of the International Plan of Action are relevant.

[24] Article 3. 1 defines illegal fishing as activities:

3.1 1 Conducted by national or foreign vessels in waters under the jurisdiction bf the state, without the permission of that state, or in contravention of its laws and regulations;

3.1.2 Conducted by vessels flying the flag of states that are parties to a relevant Regional Fisheries Management Organisation, but operate in contravention of the Conservation and Management Measures adopted by that organisation and by which the states are bound, or relevant provisions of the applicable international law; or

3.1.3 In violation of national laws or international obligations, including those undertaken by co-operating states to a relevant regional fisheries management organisation.

[25] Article 8 provides that the objective of the International Plan of Action is to prevent, deter and eliminate illegal unreported and unregulated fishing by appropriate measures.

[26] Article 9.3 mandates states to

embrace ... measures to ensure that nationals do not support or engage in IUU fishing.

[27] Finally, Article 18 provides as follows:

In the light of relevant provisions of the 1982 UN Convention [UNCLOS], and without prejudice to the primary responsibility of the flag state on the high seas, each state should, to the greatest extent possible, take measures or co-operate to ensure that nationals subject to their jurisdiction do not support or engage in illegal unregulated and unreported fishing. All states should co-operate to identify those nationals who are the operators or beneficial owners of vessels involved in illegal unregulated and unreported fishing.

[28] The timing of the endorsement of the International Plan of Action by the FAO, and of the timing of the enactment and bringing into force of s 113A, are of interest.

[29] The introductory paragraphs to the International Plan of Action records a brief history of the international negotiations leading to its adoption, commencing in February 1999, when the FAO Commission on Fisheries identified the need to prevent, deter and eliminate illegal unregulated and unreported fishing. The following month, an FAO Ministerial meeting resolved that FAO would develop a global plan of action to deal with the problem. Thereafter a series of meetings took place leading to the approval of the draft International Plan of Action by the FAO Committee on Fisheries in March 2001 and its endorsement at a plenary session of the FAO Council in June 2001.

[30] Section 113A formed part of the Fisheries Amendment Bill (No 2), which was introduced into Parliament in June 1999. Section 113A remained unamended when the Bill was enacted, but did not come into force until 1 May 2001. By 1 May 2001, the endorsement of the International Plan of Action by the FAO Council was a mere formality. Moreover, New Zealand had ratified the Fish Stocks Agreement a few days earlier, on 18 April 2001.

[31] The timing was no coincidence. As Ms Ridings said, the Bill was introduced in order to ensure that New Zealand would be able to meet its international obligations once the Fish Stocks Agreement came into force.

[32] Article 117 of UNCLOS refers only to the conservation of the living resources of the high seas (emphasis added); and the Fish Stocks Agreement does not require a state party to take measures in respect of its own nationals, but only in respect of “vessels flying its flag”. Thus, the International Plan of Action is the only international instrument which (by Articles 9 and 18) expressly sanctions measures by states party in respect of their nationals rather than their ships.

[33] I accept that legislation should, if possible, be interpreted consistently with New Zealand’s obligations under international law: Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA).

[34] It is apparent from the foregoing review of the governing international legal instruments that it is entirely consistent with international law for New Zealand to enact legislation governing the operations of New Zealand ships. I accepted that Article 117 of UNCLOS refers to fishing operations on the high seas rather than in the territorial waters or the economic zones of foreign states, but both the Fish Stocks Agreement and the International Plan of Action mandate national legislation in those waters.

[35] Furthermore, there can be no doubt as to the competence of the New Zealand Parliament to enact legislation controlling the activities of New Zealand ships wherever they may be found. There are many examples of this in the Maritime Transport Act 1994. Examples include the notification and investigation of accidents, s 31 requiring the notification of accidents occurring on board New Zealand ships without reference to their geographical situation at the time of the accident, and s 57 giving the Director of Maritime Safety power to investigate the accident. Section 31 also requires the notification of accidents on foreign ships to be notified to the Director if they occur in New Zealand waters, in which instance s 57(3) expressly requires the Director of Maritime Safety to permit participation or representation of foreign states in any investigations. This implies recognition by New Zealand of the rights of foreign states to assert authority in respect of vessels flagged in such states even though they might be in New Zealand waters.

[36] Similarly, s 228(4) of the Act requires the master of a New Zealand ship to report a pollution incident to the appropriate authority of the nearest state if such incident occurs beyond the outer limits of New Zealand’s economic zone; and any failure to do so amounts to an offence under s 239 of the Act.

[37] There is a further range of measures relating to the health and safety of seafarers on New Zealand ships, contained in either the Maritime Transport Act or the Health and Safety in Employment Act, which apply to New Zealand ships wherever they may be.

[38] I therefore conclude that, to the extent that s 113A purports to regulate the conduct of New Zealand ships wherever they may be, it is consistent both with international law and with other New Zealand legislation governing the operation of New Zealand ships.

[39] I turn to that part of s 113A which purports to control the activities of New Zealand nationals. I consider that the provisions of the international instruments to which I have already referred establish that the assertion of such a right of control is consistent with international law as either contained or reflected in such instruments. It is true that s 113A was enacted in 1999, before New Zealand’s ratification of the Fish Stocks Agreement and adoption of the International Plan of Action. However, both of those instruments came into force internationally essentially at the same time as s 113A came into force in New Zealand, and both were of course in force at the time of the alleged offending. Under s 6 of the Interpretation Act, enactments apply to circumstances as they arise, or, in the language of s 5 of the former Acts Interpretation Act, the law is to be considered as “always speaking”. That such is the case also with international law is implicit in Keith J's comment in Sellers (at page 62) as to application of the principle that national law is to be read consistently with the related international law, entailing that the meaning of national law may vary from time to time without formal change.

[40] No authority is needed for the proposition that. apart altogether from treaty law, international law recognises the right of states to legislate in respect of the conduct of their own nationals wherever such conduct may have occurred.

[41] It follows in my view that the purported application of s 113A both to New Zealand nationals and to New Zealand ships is consistent with international law, so that international law on its own does not hinder the interpretation of s 113A in the way favoured by the informant.

[42] Furthermore, the international instruments collectively demonstrate the purpose of the international community to control illegal, unregulated and unreported fishing, by mandating states parties to legislate in respect of their own nationals and ships flying their own flags, wherever such nationals and such ships might be found.

[43] To interpret s 113A disjunctively, as argued by the informant, is entirely consistent with the purpose of the international instruments.

[44] I turn now to the question of interpretation without reference to the international materials.

[45] As noted above, the defendant argued that s 113A should be construed in the. same way as s 113E, which is designed to regulate fishing on the high seas. They argue that s 113E clearly requires an informant to establish both that the person charged is a New Zealand national and that the vessel is registered under the Ships Registration Act 1992.

[46] I am afraid that I do not understand that submission. Section 113E relevantly provides that:

No New Zealand national may use a vessel that is not registered under the Ship Registration Act 1992 . . - [to take or transport fish except in accordance with specified authorisations].

[47] The purpose of s 113E is to limit illegal, unregulated and unlawful fishing on the high seas by New Zealand nationals using ships which are either registered in rogue states or are unregistered. That purpose is expressly mandated by the International Plan of Action. The section follows on logically from s 113D, which governs the use by any person (of whatever nationality) using a New Zealand ship on the high seas without appropriate authorisation. Section 113A appears to me to be directed, in respect of foreign fisheries waters, at the same mischief as ss 113D and 113E in relation to the high seas, so that the three sections together establish a comprehensive and consistent set of rules governing the conduct outside New Zealand fisheries waters of New Zealand nationals and persons using New Zealand ships.

[48] Further, with respect, it appears to me that s 113E does not actually say what the defendants submit that it says.

[49] I therefore conclude that the comparison with s 113E does not assist the defendants.

[50] Turning to consider directly the “and/or” issue, I agree with the informant’s submission that to give meaning to all the words in the section, it must be taken simply as defining two classes of people whose conduct is regulated. and that a person who falls into either class of person will be caught by it. I further agree with the informant’s submission that the words “and no person” or alternatively the words “no New Zealand national” would have been unnecessary if the section was aimed only at, respectively, New Zealand nationals using a New Zealand ship, or people of whatever nationality using a New Zealand ship.

[51] It seems to me that s 113A(1) merely specifies two categories of person who may not engage in conduct of the type described. A hypothetical example of identical drafting which clearly requires a disjunctive construction would be a provision that

... no girl under the age of 16, and no boy under the age of 12, may enter licensed premises unless accompanied by an adult.

[52] I therefore conclude that an offence under s 113A may be committed both by New Zealand nationals using ships of any foreign flag, or no flag at all, and by any persons using New Zealand ships.

[53] This conclusion means that the defendant Boyes is open to prosecution under the section, but that the defendant Tukunga may be liable only if he is a “New Zealand national” for the purposes of the section.

(j) and (k) Tukunga nationality issues:

[54] Mr Tukunga was born in Tonga, is not a New Zealand citizen, and does not hold a New Zealand passport. However, the definition of a “New Zealand national” in s 2 of the Fisheries Act is wider than that, and relevantly includes “a person who is ordinarily resident in New Zealand”. It follows that, in principle, a foreign passport holder who is ordinarily resident in New Zealand can be a “New Zealand national” for the purposes of s 113A.

[55] The controversy is over the meaning of the words “ordinarily resident”. The trail as to the meaning of those words leads from the Fisheries Act through the Overseas Investment Act 1973 to the Immigration Act 1987. The conclusion is that Tukunga was not ordinarily resident in New Zealand at the time of the alleged offence unless he was entitled under the Immigration Act 1987 to be in New Zealand indefinitely.

[56] As Mr Anderson, counsel for Tukunga, submitted, the only way he could have been entitled under the Immigration Act 1987 to be in New Zealand indefinitely was by the grant or deemed grant of a residence permit under that Act.

[57] Although it appeared at the time of the hearing that Tukunga did not hold a residence permit under the Immigration Act 1987, it was accepted that he had been granted permanent residence in New Zealand on 10 February l976 under the Immigration Act 1964.

[58] However, by memorandum dated 22 November 2006, counsel for Tukunga indicated that the position appeared to be that Tukunga was granted a further residence permit under the 1987 Act in October 2003, shortly before the alleged offending took place. As a result, counsel for Tukunga and the informant have agreed that following release of this judgment they will agree on a set of facts upon which the nationality issue can be argued — presumably, if nationality is still in issue.

(e) If Tukunga not New Zealand national, can Boyes be convicted?

[59] This question arises from the defendants’ submission that the informations ending 1906 and 1907 are bad for duplicity. In a later section of this judgment I reject that submission. As a result there is no need to address the question.

II The substantive offence

(f) Section 113A a strict liability offence?

[60] On the face of it, s 113A creates an offence of strict liability. Primarily, this is because of s 240 of the Fisheries Act, which states:

In any proceedings for an offence against this Act if is not necessary for the prosecution to prove that the defendant intended to commit the offence, ...

Section 241 gives a defendant a defence if he or she can “prove” that:

(i) The contravention was due to the act or default of another person, or to an accident or to some other cause beyond the defendant’s control; and

(ii) The defendant took reasonable precautions and exercised due diligence to avoid the contravention.

[61] In essence, this amounts to a statutory recognition of the position established in the well-known cases of McKenzie v Dept of Civil Aviation and Millar v Ministry of Transport.

[62] McKenzie and Millar were both decided before the enactment of the New Zealand Bill of Rights Act (NZBORA). After the enactment of that Act, questions arose as to the impact of s 25(c) of the Act, which states:

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

...

(c) The right to be presumed innocent until proved guilty according to law:

[63] Goddard J went into the question in some detail in Joe v Police (Wellington AP 230/95, 1.12.95), an appeal against conviction for alcohol-impaired driving. Following the reasoning in the Canadian case of R v Wholesale Travel Group Inc (1991) 84 DLR (4th) 161 (SCC), the learned judge concluded that

... it does not seem necessary to review the classification of the current offence as a strict liability offence, post the enactment of the New Zealand Bill of Rights Act l990.

It should be noted that in Wholesale Travel the court was concerned with a charge of false or misleading advertising, for which the statute provided a defence on four conditions, including proof by the defendant of “reasonable precautions”. So the case was concerned with Charter issues arising out of a statutory defence rather than a common law one as in Joe.

[64] The Court of Appeal considered the question in Tell v Maritime Safety Authority (CA 230/02, 27.11.02). That case concerned the appellant’s conviction for operating a fishing vessel in a manner causing unnecessary risk. It was submitted that the informant had to prove mens rea in the sense of proving that the defendant had consciously appreciated that the manner of operation was causing unnecessary danger or risk. The Court however held that the offence was one of strict liability within the meaning of McKenzie and Millar, which continued to state the law correctly despite the enactment of s 25(c) NZBORA. The Court dealt with the issue without debate in the following terms:

As the law was correctly applied in the Courts below Mr Tell was proved guilty in accordance with it.

[65] Joe and Tell concerned the impact of the NZBORA on the common law rules as to proof of mens rea clarified in McKenzie and Millar. As Goddard J noted in Joe, common law rules are outside the scope of s 4 of the Act (and, she might also have said, ss 5 and 6) which deal with the impact of the Act on other statutes.

Nevertheless, she noted authority on the United Kingdom equivalent to s 25(c) to the effect that common law rules may be “prescribed by law” although not enshrined in legislation.

[66] So at least in this Court and at least down to the present the position has been that the law as to the onus resting on a defendant as to intention in cases which the common law recognises as public welfare regulatory offences is not affected by s 25(c).

[67] In this case, however, the law as to onus and matters of defence is contained in ss 240 and 241 of the Fisheries Act. Until 20 February this year it would, I think, have been a sufficient answer to the s 25(c) argument to echo the words of Tipping J speaking for the Court of Appeal in Tell: the relevant law is set out in s 241 of the Fisheries Act, the position is perfectly clear under that section, and there is therefore no room for the operation of s 25(c).

[68] On 20 February the Supreme Court released its decision in Hansen v R [2007] NZSC 7. That case concerned the nature of the onus resting on a defendant charged under s 6 of the Misuse of Drugs Act 1975 with possession of controlled drugs for supply. If a defendant is in possession of more than 28 grams of cannabis, he is deemed to possess it for the purpose of supply “until the contrary is proved”. It had been held in R v Phillips [1991] 3 NZLR 175 that these words placed a legal onus on the defendant to establish to the standard of the balance of probabilities that he had the drugs for some other purpose — eg, personal use. Hansen argued that Phillips was wrong, because imposing a reverse onus on a defendant was inconsistent with s 25(c). He maintained that consistency could be achieved if s 6(6) of the Misuse of Drugs Act was construed to require a defendant merely to adduce evidence raising a doubt as to the purpose of the supply. It would than be for the Crown to satisfy the jury beyond reasonable doubt of the defendant’s purpose.

[69] The decision in Hansen extends over some 123 pages, there are five separate judgments, and the Chief Justice and, I think, Anderson J dissented on the approach but not the result. In those circumstances I hope I will be forgiven if I do not embark on a detailed analysis of the judgments. Clearly the approach of the majority will apply to onus issues in the future. However, the actual outcome is not a one size fits all solution to such issues, which might arise under many differently-worded statutory provisions imposing criminal liability. Hansen was concerned with the onus of proof of a particular ingredient of the offence. By contrast, Wholesale Travel, and the McKenzie and Millar approach, confirmed post NZBORA in Joe and Tell, were concerned with the onus of proof of reasonable precautions or mens rea. As a result, even though s 25(c) is engaged in both instances, the approach taken in the earlier cases may well retain vitality to the extent that it differs from the approach in Hansen.

[70] The Court was unanimous that s 6(6) of the Misuse of Drugs Act could not be construed in the manner suggested by the appellant. It could not be construed as other than, as Elias CJ starkly put it at paragraph [39], a statutory allocation of the legal burden of proof. As a result, whether or not the section was inconsistent with s 25(c) (as the Court considered it was), and even if it was unjustifiable under s 5 (as most members of the Court accepted), s 4 required it to be applied in accordance with the interpretation given its predecessor in Phillips. The appeal was therefore dismissed.

[71] I return to the present case. I consider that s 241 of the Fisheries Act is incapable of bearing any meaning other than that it imposes a legal burden of proof on a defendant. It follows s 240, which expressly states that the informant does not have to prove intention. Like s 6(6) of the Misuse of Drugs Act, it expressly requires proof by the defendant of the circumstances referred to. In terms of the reasoning of the Chief Justice in Hansen, it is therefore irrelevant whether the section is consistent with s 25(c) or justifiable under s 5; and it is applicable according to its terms.

[72] Alternatively, I consider that the same result can be reached by analysis along the lines indicated by the other judges in Hansen and adopted in paragraphs [96]-[106] below with reference to s 67(8) of the Summary Proceedings Act.

[73] I therefore conclude that the offence is one of strict liability, the onus of establishing one of the defences set out in s 241 resting with the defendants to the standard of the balance of probability.

III Extra-territorial jurisdiction issues

(a) Necessity for proof of offence under Australian law by proof of conviction

[74] This issue arises from the closing words of s 113A as to the taking or transport of fish in accordance with the law of the foreign jurisdiction.

[75] The “simple argument” advanced by counsel for Boyes is that:

In the context of New Zealand fisheries legislation, it cannot be known whether or not an offence has been committed against the Australian fisheries management legislation until a conviction is entered in Australia.

[76] The argument continues that it is now impossible for an offence to be committed in the context of the Australian legislation, because a prosecution would have had to have been commenced within one year of the commission of the offence. As a result, the door is opened to a prosecution in New Zealand for an act or omission that is not a provable offence in another jurisdiction.

[77] Counsel for Tukunga made no submissions on this particular issue.

[78] The informant’s submissions under this heading were directed primarily at the effect of s 67(8) of the Summary Proceedings Act as to the burden of proof of an exception — a matter which is certainly relevant in the context of the case as a whole and which will be discussed below, but not, in my judgment, one which is relevant in relation to this particular issue.

[79] It seems to me that the question is answered by directing attention at the precise wording of the section. The question arising under s 113A is not whether an alleged offender has committed an offence under the laws of the foreign jurisdiction, but whether his or her acts or omissions accorded with the laws of that jurisdiction.

[80] Australian law is relevantly contained in s 95, s 100 and s 101 of the Fisheries Management Act 1991 (Cwth). Those sections adopt the pattern familiar in New Zealand legislation of specifying conduct which is forbidden, and then going on to provide that persons who do what is forbidden are guilty of an offence.

[81] The fact that conduct is unlawful may often have wider implications than that it amounts to the commission of offence. An obvious example is that a contract involving the performance of the unlawful act would be illegal, with the consequences specified in the law of contract. Thus in my view the question of whether conduct is lawful or unlawful is a separate, and prior,
question to the question of whether an offence is committed.

[82] It is only in the consideration of that later question that issues arise as to whether a prosecution in Australia would be time-barred, whether there are defences available in Australia which might not be available in New Zealand, and whether there are differences between the two countries as to strict liability offences

[83] Counsel for the informant drew attention to a number of examples of offences under New Zealand law involving conduct abroad. The examples include the general provisions of ss 8 and 8A of the Crimes Act; ss 105C, 105D and 105E of that Act concerning corruption; ss 243 and 244 of the same Act concerning money laundering; and ss 10 and 12C of the Misuse of Drugs Act relating to drug dealing overseas. All of those examples afford a defence in respect of acts which are not “offences” under the law of the place in which the acts occurred. I therefore consider that the examples given are not helpful in the present context.

[84] I conclude that the informant does not need to prove that an offence has been committed against the laws of Australia by proving that the defendants have been convicted in Australia before a New Zealand Court may find the charge proved.

(g) Proof by informant that the defendants’ actions were contrary to Australian law?

[85] It follows from what I have just said that this issue requires examination.

[86] The informant submits that the defendants are required to prove that the fish was transported under and in accordance with the laws of Australia. It submits that this consequence arises from s 67(8) of the Summary Proceedings Act 1957, which provides as follows:

Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the enactment creating the offence, may be proved by the defendant, but, subject to the provisions of s 17 of this Act, need not be negatived in the information, and, whether or not it is so negatived, no proof in relation to that matter shall be required on the part of the informant.

[87] The effect of s 67(8), so the informant submits, is that the defendants would have to point to either an Australian statutory provision or a common law principle (or, I would have said, a permit or something similar issued by the Australian authorities) under which the specific act of taking or transporting was lawful. It is not for the informant to show that the taking or transporting was unlawful.

[88] Mr Anderson, counsel for Tukunga, advanced an attractive argument to the contrary, along the following lines.

[89] He emphasised that what was called for was a construction of s 113A considering in particular its form, its intrinsic character and its real effect. The Court should also look at the mischief the Act is designed to meet. He pointed out that the comparative ease or difficulty that the respective parties would encounter in discharging the burden is of considerable importance in ascertaining where the burden lies.

[90] Mr Anderson accepted that the use of the word “unless” appears to suggest the possibility that the part of the section beginning with that word is an exception. However, he said that it would be wrong to leap from the word “unless” to the conclusion that an exception is created. That is because, he said, the real mischief at which the section is aimed is that the conduct is contrary to the laws of the foreign country. He maintained that, had that section been drafted so as to state the prohibition in that way — making it an offence for a New Zealand national to take fish in foreign waters contrary to the laws of the foreign country — it would have been impossible to argue that s 67(8) applied. He argued that the legality of the conduct cannot be an exception because it goes to the heart of the offence and therefore cannot fall within s 67(8).

[91] I disagree. I consider that the wording of the section demonstrates an intention to impose a blanket ban on fishing in foreign fisheries waters; but recognises the possibility that such fishing might be lawful, or be authorised in some way by the foreign state, so that to impose a blanket ban without the possibility of establishing that the conduct might be lawful would work unfairly. Thus defendants are given the opportunity of demonstrating that, in the particular instance, they are behaving lawfully. Put another way, Parliament probably deliberately chose not to enact the prohibition in the way Mr Anderson suggested, but in a way which, as a matter of grammar and construction, provided for an exception which, by virtue of s 67(8), would have to be proved by the defendant. There is nothing wrong with that: as noted by the Chief Justice in Hansen, referring to an observation of Lord Steyn in R v Lambert [2002] 2 AC 545 at para [35], the difference between an element of the offence and issues of defence or excuse often depends simply on the drafting technique adopted.

[92] It follows that I accept the careful analysis put forward by the informant as to the application of s 67(8) and its application to the circumstances. It is, with respect, a conventional analysis (and none the worse for that), and for that reason I am not going to examine it in detail.

[93] I therefore conclude that the final words of s 113A(1) amount to an “exception, exemption, proviso, excuse, or qualification” within the meaning of s 67(8) of the Summary Proceedings Act.

[94] However, the inquiry does not end there. Tukunga submits that s 67(8) is prima facie inconsistent with s 25(c) NZBORA. He argues that it should be given a restrictive interpretation so that it is confined to provisions which are clearly and unequivocally within the section.

[95] Counsel for the informant did not address argument to me on this issue.

[96] Although not developed in any detail in argument, I consider that Tukunga’s submission warrants serious consideration. I will consider first whether the section is clear and admits only of the meaning suggested by the informant. If so, then, as noted earlier when discussing the judgment of Elias CJ in Hansen, that is an end to the inquiry. If, on the other hand, I consider that the provision is not clear, then I will approach the matter by working through the suggested approach outlined by Tipping J at paragraph [92] of Hansen.

[97] I consider that s 67(8) is clear. It can mean only that an informant is not required to advance proof that an exception, exemption, proviso, excuse, or qualification does not apply, leaving it to the defendant to advance proof that such an exception, etc, does apply. The requirement for “proof” by the defendant clearly shifts the legal burden of proof to the defendant, in the same way as was the case in Hansen.

[98] If I am wrong about that, then I nevertheless consider that working through the process suggested by Tipping J leads to the same result.

[99] I have already covered Step 1. I consider that Parliament’s intended meaning is the meaning just stated.

[100] Turning to Step 2, I consider that such meaning appears to be inconsistent with the s 25(c) right of presumption of innocence according to law. It would be hard for me to do otherwise given that the Crown conceded in Hansen that the analogous imposition of a legal onus on an accused in s 6(6) of the Misuse of Drugs Act is contrary to the presumption of innocence.

[101] It is next necessary in terms of Step 3 to ascertain whether the inconsistency is nevertheless a justified limit in terms of s 5 NZBORA.

[102] In the particular case of s 67(8), there is a preliminary problem in addressing this issue. That is because s 67(8) does not in itself create an offence. It is potentially applicable in respect of criminal charges arising in a wide variety of circumstances and under a multitude of statutes; so that circumstances which might be regarded as justifying a requirement on a defendant to make proof of some aspect may arise in one case, but not in another. Often it is said that it is reasonable to place the onus on a defendant because the defendant has all the information in its possession and is in the best position to determine its own compliance. That was the case in Juken Nissho Limited v Northland Regional Council [2000] 2 NZLR 556. (It is perhaps worthy of note that counsel for the appellant in that case accepted that s 25(c) NZBORA could not negative the effect of s 67(8).)

[103] The Supreme Court in Hansen endorsed reliance on the test of justification summarised by the Supreme Court of Canada in R v Chaulk [1990] 3 SCR 1303, 1335-1336 as follows:

1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

2. Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must:

a. be “rationally connected” to the objective and not be arbitrary, unfair or based on irrational considerations;

b. impair the right or freedom in question as “little as possible”; and

c. be such that their effects on the limitation of rights and freedoms are proportional to the objective.

[104] Blanchard J in Hansen, at paragraph [65] warns that —

Any limitation on a guaranteed right should be accepted as demonstrably justified only after the Court has worked through a careful process.

[105] Bearing that warning in mind, I have concluded that, at least in association with s 113A, s 67(8) is justified in terms of s 5, for the following reasons:

(1) The objective of securing the conviction of persons engaged in illegal fishing internationally is of high importance and relates to pressing and substantial concerns. That high importance is emphasised by Article 1 of the International Plan of Action, which describes the issue of illegal, unreported and unregulated fishing as an issue of “serious and increasing concern”. It goes on to refer to the negative effects of such fishing on biosecurity and environmental protection. It further notes that such fishing can lead to the collapse of a fishery and will seriously impede efforts to rebuild stocks that have already been depleted

The New Zealand Plan of Action, adopted in May 2004 (which I accept is subsequent to the alleged offending in this case) sets out in s 1.4 a detailed exposition of the problem of illegal, unregulated and unreported fishing, making it clear that such fishing is regarded extremely seriously and carries serious consequences for fisheries, biodiversity, and legitimate fishers.

(2) The effect of the section is rationally connected to the objective just stated because it facilitates the prosecution of offenders against whom the prosecution can demonstrate a prima facie case.

(3) It is not irrational, because proof of, e.g. possession of a permit from a foreign state, or some person or body exercising relevant authority in a foreign state, is more readily established by an alleged offender. This point was expressly noted by the Chief Justice in Hansen at paragraph [43]. If the issue is proof of compliance with foreign law, in most instances that is not likely to involve more than a legal analysis of such law; and a defendant is better able than the prosecution to establish how that law operates on his or her own particular situation.

(4) I consider, without discussion, that the impairment of the presumption of innocence is the minimum required in the circumstances.

(5) Having regard to the objective of preventing a problem perceived globally as extremely serious, I consider that the effect of s 67(8) on the presumption of innocence in cases under s 113A is proportional to that objective.

(6) I think it is also relevant to note that s 67(8) is a re-enactment of a similar provision appearing in the Summary Proceedings Act 1927. Its antecedents go back at least a century, as is apparent from the citation of a 1907 Irish case in Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680; and it is part of the fabric of our law. The right of presumption of innocence recognised by s 25(c) requires proof of guilt “according to law”. Section 67(8) is in my view a part of the law in accordance with which the informant is required to establish the guilt of the defendants: see the observation of Tipping J, speaking for the Court of Appeal, in Tell quoted in paragraph [64] above.

[106] In the light of this conclusion, the apparent inconsistency between s67(8) and s 25(c) is, in the words of Tipping J in Hansen, “legitimised and parliament’s intended meaning prevails “. It is therefore unnecessary for me to further consider steps 5 and 6 in Tipping J’s guide to the approach required in cases of this kind.

[107] I therefore conclude that the onus is on the defendants to establish that fish was taken or transported under, and in accordance with, the laws of Australia.

(h) Proof of Australian offence of transporting fish

[108] It is not necessary to go into this topic at length. As discussed earlier, the question is not whether an alleged offender has committed an offence under the laws of the foreign jurisdiction, but whether his or her acts or omissions accorded with the laws of that jurisdiction. The onus of proof of that lies on the defendants for reasons which I have already given.

[109] I add that the informant adduced affidavit evidence from two officers of the Australian Fisheries Management Authority: its General Legal Counsel, Mr Brian Kildea; and its Manager, Foreign Fishing Operations. Mr Michael Yates. Their evidence is sufficient to show that, on the assumed facts, the defendants appear to have committed offences under s 101 of the Fisheries Management Act 1991 (Cwth). These sections refer to the use of foreign vessels for commercial fishing, and having charge of a foreign vessel equipped with nets and other fishing equipment within the Australian fisheries zone. Mr Yates’ affidavit also establishes that, on the face of it, there was not a foreign fishing licence issued to the vessel in terms of the Fisheries Management Act.

[110] But, as I have already noted, it is the defendants who carry the burden of proof of compliance with that legislation whether by establishing the issue of a permit or by establishing that there conduct as proved did not infringe the Australian statute.

IV Bill of Rights issues

(b) Double jeopardy and overseas convictions or acquittals — s 26(2) NZBORA

[111] Both NZBORA and the Crimes Act 1961 contain provisions to the effect that a prior conviction or acquittal operates as a bar to a further prosecution.

[112] Section 26(2) NZBORA provides as follows:

No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

[113] Section 358(1) of the Crimes Act provides as follows:

On the trial of an issue on a plea of previous acquittal or conviction to any count, if it appears that the matter on which the accused was formerly charged is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made that might then have been made, have been convicted of all the offences of which he may be convicted on any count to which that plea is pleaded, the Court shall give judgment that he be discharged from that count.

[114] Thus the law generally recognises a principle of double jeopardy, whereby a person cannot be convicted twice for the same offence. But neither of these provisions deal with the effect of convictions or acquittals in foreign countries.

[115] The position under English law appears to be that, with certain exceptions as to “political” crimes in areas such as treason, official secrets and electoral law, the rule against double jeopardy applies to foreign convictions and acquittals. There is the further exception that the defendant must have been “at real risk or danger of punishment” in the foreign jurisdiction. Thus a defendant who has been convicted abroad in his absence and has taken no part in the proceedings is unlikely to be able to plead the rule against double jeopardy. (See Halsbury's Laws of England (4th edition) Vol 11(1), para 635.)

[116] There appears to be no relevant New Zealand authority. The “Fisheries” title in Laws NZ, paragraph 123, notes in relation to s 113A, without citation of authority, that

This principle does not automatically apply when one of the convictions occurs outside New Zealand.

This statement is consistent with the Halsbury passage just referred to; and there seems no logical reason why the English approach should not be followed here.

[117] But in this case the defendants have not been prosecuted in Australia, much less been convicted or acquitted. Nor can they now be prosecuted, because of the one year time limit on the commencement of prosecution. So that there is no room for a defence of double jeopardy based on the outcome of prior criminal proceedings elsewhere.

[118] I do not need to consider the implications of prosecutions which might subsequently be commenced elsewhere, for several reasons. First, the time bar would prevent proceedings in Australia. Secondly, as appears from the affidavit of Mr Ian Bertram, the Secretary, Ministry of Marine Resources of the Cook Islands (the flag state of SZAP5), that country did not, at the time of the alleged offending, have legislation in place under which the defendants could have been prosecuted. Thirdly, the implications for other jurisdictions of the conviction or acquittal of the defendants in these proceedings is for the courts of those jurisdictions to determine.

[119] Finally on tins topic, the informant has submitted that the requirement for the consent of the Attorney-General to prosecutions under s 113A represents a “constitutional safeguard against the risk of placing a defendant in double jeopardy”. That submission stems from observations of the Court of Appeal in R v Fineberg (No 2) [1968] NZLR 443, 451 as to the approach likely to be taken by the Attorney in considering whether to give consent. The Court opined that the Attorney would consider the implications of the prosecution outside New Zealand — put another way, the stance of relevant foreign governments, in this case, as to the commencement of proceedings in their own jurisdictions.

[120] I do not place a great deal of weight on this consideration, because it is clear from the passage in Fineberg that the Attorney can also be expected to have regard to the administration of justice in New Zealand, and other locally-focussed considerations. The risk that a defendant may be placed in double jeopardy is not explicitly identified for consideration. It is only one of a number of considerations, perhaps competing, that the Attorney may take into account in reaching a decision as to whether to give consent to a prosecution.

[121] I conclude that there is nothing in either s 26(2) NZBORA or s 358 of the Crimes Act standing in the way of these proceedings.

(c) Availability to defence of necessary witnesses — s 25(f) NZBORA

[122] Section 25(f) NZBORA provides as follows:

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution.

[123] Counsel for Boyes submitted that, by the very nature of the charges, Boyes would be unable to defend the charges in the same manner as if they had been proceeded with in Australia. He submitted that this constituted a breach of s 25(f). Counsel for Tukunga did not address this point.

[124] With respect to counsel, the submission was rather opaque. I think there were two aspects to it, the first arising out of differences between Australian and New Zealand law on the burden of proof; and the second relating to the cost of defending the charges in New Zealand.

[125] As to the first aspect, I think the point was that if the charges had been brought in Australia the prosecution would have had the onus of proof of offending and would therefore have had to call witnesses to make out all aspects of the case. In New Zealand, assuming that the onus rested with the defendants despite the arguments raised to the contrary and discussed earlier in this judgment, the defendants would have to call witnesses to establish their innocence.

[126] As to the second aspect, I think the point was that a heavier costs burden would fall on the defendants in New Zealand, both because the less favourable onus of itself placed a heavier costs burden on the defendants, and also because the defendants and not the informant would have to meet the costs of bringing any relevant Australian witnesses before the Court.

[127] The informant submitted that s 25(f) is not intended to address either of the concerns raised. Relying on Butler & Butler, The New Zealand Bill of Rights Act: A Commentary(2005) at para 23.8.4, counsel argued that the rights in respect of witnesses addressed by s 25(f) were qualified by the concluding words of the subsection, “under the same conditions as the prosecution”. He argued that those words indicated that the subsection was concerned solely with equality of arms between prosecution and defence. (I have taken it that he was referring to procedural equality rather than financial equality.)

[128] Counsel pointed out that witnesses who gave evidence for the prosecution at trial would be subject to cross-examination in the usual way and that deponents, wherever they might live, could be required to attend for cross-examination.

[129] I agree with the informant’s arguments.

[130] As for potential defence witnesses, I accept that cost is a practical consideration; but for better or worse it is not a legal one. In procedural terms, the defence is in no worse position than the prosecution to identify potential witnesses and bring them to court. If witnesses are reluctant to attend and their reluctance cannot be overcome by having them give evidence by video link, then powers exist under the Mutual Assistance in Criminal Matters Act 1992 to secure their evidence by deposition. Section 11 of the Act provides as follows:

(1) Where the Attorney-General is satisfied that there are reasonable sounds for believing that evidence or information relevant to any criminal proceedings in New Zealand may be obtained if a court or other judicial authority in a foreign country is requested -

(a) To take, or cause to be. taken, the evidence of any specified person; or

(b) To order the production of any specified document by any person, -

the Attorney-General may request that foreign country to assist in arranging for that evidence to be taken or that document to be produced.

(2) Any deposition (by whatever name called) that is received from a foreign country pursuant to a request made under subsection (1) of this section and that purports to have been signed by the deponent and the person taking the evidence or to have been certified as a correct record by the person taking the evidence may, subject to the rules of law relating to the admission of evidence, be put in as evidence at the hearing of the criminal proceedings to which the request relates.

(3) Any document (other than a deposition) received from a foreign country pursuant to a request made under subsection (1) of this section may, subject to the rules of law relating to the admission of evidence, be put in as evidence at the hearing of the criminal proceedings to which the request relates as if produced by the person who produced the document pursuant to the order of the Court or other judicial authority of that foreign country.

(4) All courts shall take judicial notice of any seal or signature impressed, affixed, appended, or subscribed on or to any deposition (by whatever name called) tendered in evidence under this section.

[131] The application of the Act to the defence in criminal cases was helpfully examined by the High Court in Samleung International Trading Co Ltd v Collector of Customs [1994] 3 NZLR 285 (Blanchard J). The headnote relevantly reads as follows:

Any request to the Hong Kong Court under the Mutual Assistance in Criminal Matters Act 1992, Part II might be made by the Attorney-General. There was nothing in that Act saying that the Attorney-General was to use his powers on behalf of the prosecution only. It would be a breach of s 25(f) of the New Zealand Bill of Rights Act 1990 if the defendant in a criminal matter were able to satisfy the Attorney-General that reasonable grounds existed in terms of s 11(1) of the Mutual Assistance in Criminal Matters Act and if the Attorney-General were then to decline to use his powers to make a request in an appropriate form (see p 290 line 38, p 291 line 1).

[132] As the Act appears to be modelled on an Australian equivalent, and as orders have been made to facilitate assistance to Australian courts in reciprocal situations, it is not easy to think that there would be any difficulty about using it to obtain depositions from Australian witnesses; or that the Australian courts might lack the power to assist.

[133] It follows that I accept the submissions of counsel for the informant that the prosecution does not involve a breach of s 25(f) NZBORA.

V Duplicity

(i) Informations bad for duplicity?

[134] The defendants argue that the informations are duplicitous in two respects: first, informations ending 1906 and 1907 charge each defendant with transporting fish “together with” the other; and secondly, all informations give particulars of two separate sections of the Australian Fisheries Management Act (Cwth), presumably as an indication that the defendants infringed those sections. The defendants submit that the informations infringe s 16(1) of the Summary Proceedings Act 1957, providing for informations to be for one offence only.

[135] On the first issue, the informant explains that the allegation is that each defendant was on duty at different times during the transportation, so that they played separate roles in the same offences; and that they are not charged as parties to each other’s offending. Indeed, on the facts alleged by the informant, they could not be parties within s 66 of the Crimes Act 1961.

[136] I consider that the wording of the informations ending 1906 and 1907 is such as to make it clear that they charge offences against a single defendant. The use of the words “together with” merely indicates that the person named was also there at the time, without reference to the issue of whether that person might also have committed an offence-

[137] On the second issue, I consider that the function of the particulars is to narrow the scope of the generalised allegation of conduct unlawful under Australian law to the two provisions referred to. In the context of my conclusions on the onus of proof the particulars helpfully indicate to the defendants that proof of lawfulness is required only in relation to those two provisions.

[138] I therefore consider that none of the informations are bad for duplicity.

Result

[139] I summarise my conclusions as follows:

I. The nationality issues

(a) An offence may be committed under s 113A either by a New Zealand national, or by any person using either a ship that is registered under the Ship Registration Act 1992 or a ship that flies the New Zealand flag.

(j) and (k) Should counsel determine that an issue remains as to whether Mr Tukunga is a “New Zealand national” for the purposes of s 113A, then they will agree on a set of facts upon which to argue the issue.

(e) Even if Tukunga is not found to be a New Zealand national, the defendant Boyes may still be convicted on the information ending 1906.

II. The substantive offence

(f) Notwithstanding s 25(c) NZBORA, offences created by 113A of the Fisheries Act are of strict liability. Therefore the onus falls on the defendants to establish one of the statutory defences in s 241 of the Fisheries Act to the standard of the balance of probabilities.

III. The extra-territorial jurisdiction issues

(d) The prosecution does not need to prove that an offence has been committed against the laws of Australia, by proving that the defendants have been convicted in Australia before a New Zealand Court may find the charge proved.

(g) The prosecution does not need to prove that the defendants’ actions were contrary to Australian law. Section 67(8) of the Summary Proceedings Act 1957 applies to s 113A, with the result that the onus is on the defendants to establish on the balance of probabilities that fish was taken or transported under, and in accordance with, the laws of Australia. Section 67(8) applies notwithstanding s 25(c) NZBORA.

(h) The prosecution does not need to prove that there is an Australian offence which specifically prohibits transporting fish. The onus is on the defendants to prove on the balance of probabilities that their conduct as proved did not infringe Australian law.

IV. The Bill of Rights issues

(b) There is no issue of double jeopardy, or breach of s 26(2) NZBORA, preventing the Ministry of Fisheries prosecuting the defendants under a 113A. In any event, prosecution for the same fishing activities in Australia is now time-barred.

(c) The charges under s 113A do not give rise to a breach of s 25(f) NZBORA in relation to either possible differences between Australia and New Zealand in the rules as to the burden of proof in the circumstances, or the calling of witnesses.

V. Duplicity

(i) In respect of informations ending 1906 and 1907, each information charges an offence against only one of the defendants. The naming of the other defendant and other details in the informations are simply particulars refining the scope of the allegations. The informations are not bad for duplicity.

[140] The parties are invited to confer with the Registrar as to a date for a further conference to consider progress towards a further fixture in the light of this judgment.