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State v Hong Kuo Hui [2005] FJHC 732; HAC40.2004 (2 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 40 OF 2004

BETWEEN:

STATE
Applicant

AND:

HONG KUO HUI
WAIKAVA MARINE INDUSTRIES
Defendant

Counsel: Mr. P. Ridgway & Ms V. Lidise – for State
Mr. T. Fa & Ms Seeto – for the Defendant

Date of Hearing: 26th April, 2005
Date of Judgment: 2nd May, 2005

JUDGMENT

Background

The accused as master and charterer were allegedly trawling inside Fiji Fisheries Waters without a license.

The Prosecution submits that these charges under the Fisheries Act are offences of absolute liability.

The defence claim that the offences are of strict liability and a defence that they were mistaken as to whether they could fish within the zone; is available.

I am asked to rule between these two positions.

Legislation

The relevant parts of the Fijian Fisheries Legislation are Sections 5 and 10 of the Fisheries Act.

The provisions of the Fisheries Act require that a person hold a licence before they take or attempt to take fish within Fiji waters (Section 5). It is an offence for an unlicensed person to take or attempt to take fish in Fiji waters.

If a foreign fishing vessel is not licensed and is used for the purposes of fishing in our waters, the owner and master will have committed an offence under Section 10(3).

10(3) The master, owner and charterer, if any, of any fishing vessel registered elsewhere than in Fiji using such vessel for the purpose of taking fish within Fiji fisheries waters without the prior approval of the Minister or under the authority of a licence issued under the provisions of section 14 of the Marine Spaces Act shall be liable on conviction to a fine not exceeding one hundred thousand dollars.

The accused face charges under this section.

The Categories of Criminal Offences

The Prosecution submit that the law in Fiji regarding the categorization of criminal offences is found in the Australian High Court Case of He Kaw Te v R [1985] HCA 43; [1985] 157 CLR 523. He Kaw Te recognizes three categories of offences, namely: mens rea offences, strict liability offences and absolute liability offences. The categorization of offences in New Zealand has developed along the same lines. See Millar v Ministry of Transport [1986] 1 NZLR 660 ("Millar").

The Prosecution have endeavoured to discuss the mens rea categorisation of the particular offences at page 2 of their submissions, where they address the Canadian Case of R v City of Saulte Ste Marie [1978] 85 DLR (3d) 161; Sweet v Parsley [1969] UKHL 1; [1970] AC 132, 157 and Ministry of Agriculture and Fisheries v Dubchak [9 August 1994] DC WGN.

I have read the case of Dubchak and cannot find the place where the prosecution state that Keane J refers to a fourth category of strict liability. Perhaps counsel was referring to the categorisation of offences in Millar. In Millar, at 665-666 the New Zealand Court of Appeal stated that there were 4 categories of mens rea offences where the statute does not state what, if any, mens rea element is required:

(a) Implied Mens Rea: The prosecution has both a persuasive and an evidential burden to prove mens rea. Once the prosecution has proved mens rea, then in the absence of evidence to contrary (ie. a defence is raised or the defence raises a reasonable doubt) mens rea is presumed.

(b) The Strawbridge Approach: "Requires, in addition to some evidence that the accused had an honest belief in facts which would make his act lawful, some evidence or basis for thinking that it was on reasonable grounds; in which event the onus falls on the prosecution to disprove honest belief on reasonable grounds," per Cooke P at 665.

(c) Strict Liability: The prosecution is required to prove the actus reus, but in relation to one or more elements of the actus reus, there is no mens rea element to prove. However, the defendant can prove absence of fault in his part in order to exculpate themselves.

(d) Absolute Liability: The offence is complete upon proof of the actus reus. There is no requirement to prove mens rea; neither can the defendant claim an absence of fault in his or her own defence.

Deciding Which Category Applies

The Law

If mens rea is not implied in an offence provision, ie. if the offence is not an indictable or truly criminal offence, or if you cannot infer mens rea from the statutory language, then the presumption of mens rea is overridden.

In Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) McMullin J stated 672 that in such a case the Court must determine whether an offence is an offence of absolute liability or strict liability.

It is of utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens rea as an element of a crime, the defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind: Lord Goddard CJ in Bren v Wood [1946] 62 TLR 462 cited by Lord Evershed in delivering the opinion of the Judicial Committee in Lim Chin Aik v The Queen [1963] AC 160, 173. That view is reflected in New Zealand in R v Howe [1982] 1 NZLR 681.

The Court in Millar (at 668) expressed clearly that the modern position was that absolute liability offences ought to be rare, that Parliament ought to provide statutory defences for such offences and that the Courts should find absolute liability only when it is imposed in express terms or by necessary implication.

In order to determine whether an offence is one of strict or absolute liability, the following are also determinants:

• Where absolute liability may be a necessary implication, for example in tax law where failing to file a tax return automatically elicits liability otherwise a range of excuses could be used to defer the filing of a return in time. See IRD v Thomas [1989] NZHC 2211; [1989] 13 TRNZ 697.
  
• The presence of an evaluative term in the actus reus, such as "fair" or "reasonable" as such terms cannot be determined with sufficient certainty in advance and problems of fair warning arise.
  
• The absence of words such as "knowingly" or "willfully" indicating in context the absence of a mens rea component.
  
• Absolute liability should be threatened in clear terms, so that the defendant knows in advance what the boundaries of the offence are. See Re Wairarapa Election Petition [1988] 2 NZLR 74, 117.
  
• The severity of the penalty prescribed for the breach should not be too high. "It is contrary to sense and justice that a person should be subject to the ultimate penalty, no matter how careful or innocent he may be", Re Wairarapa Election Petition, at 117.
  
• If the statute itself specifies a defence, this points to there being an absolute liability offence. See McLaren Transport Ltd v MOT [1986] 2 NZLR 81, 83.
  
• If the statute expressly describes an offence as being one of "strict liability", or provides that it need not be proved that a defendant "intended" the relevant conduct, this supports the availability of the defence of a total absence of fault: Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112.
  

Absolute or Strict Liability and Fishing Law

The Prosecution’s Arguments

The prosecution submit that the offence provisions in Section 10(3) of the Fisheries Act and Section 16(1) of the Marine Spaces Act ("MSA") do not use or import words triggering mens rea. Certainly, the only requirements of Section 10(3) are that the fishing vessel:

(a) is foreign

(b) is required to hold a licence; and

(c) takes or attempts to take fish within Fiji waters (Section 10 Fisheries Act).

The nub of the prosecution’s case is that it has long been established in case law that offences in fisheries legislation are among those which, being regulatory and designed to protect natural resources, are regarded as offences of absolute liability.

The prosecution cited several cases in support of their contention that the relevant section of the Fijian Fisheries Legislation imports absolute liability. My review of the cases is as follows:

• Rashik Bhai v Regina (1959) 6 FLR 105: the offence of landing in Fiji without a valid permit was one of absolute liability.
  
• Kim v McDonald (18 February 1980) SC AK M1292/79 Speight J: an offence of fishing unlicensed in the NZ EEZ was an absolute liability offence. The defence of ignorance of location is not relevant.
  
• R v Wong Kwin Kwee (14 April 1983) HC Solomon Islands Daly CJ: a status offence not requiring proof of anything more than the particular "offending state" of the accused.
  
• Choiu Yaou Fa v Morris (8 May 1987) SC NT Asche J: an unreported Australian decision which discusses strict and absolute liability. Australia has strict liability for illegal fishing offences.
  
• Ministry of Agriculture and Fisheries v Dubchak: The Court held that if the informant could make out a prima facie case that the defendant was fishing, it is then for the defendant to prove (via Section 67(8) Summary Proceedings Act 1947, which provides for defences when none are expressed in the statute) on the balance of probabilities that their fishing was under the authority of a permit. The offence was held to be one of absolute liability. (Note that the NZ regime has changed in recent years).
  
• Wilson v Gahan [1999] VSC 72: the Court held that the offence of spraying beyond the target area causing injury to crops was an absolute liability offence. Important to the court’s decision was the clear statutory intent required before the offence could be classified as one of absolute liability. The case details four basic tests for absolute liability:
  
  1. A consideration of the words of the Statute;
     
  2. A consideration of the subject matter of the statute;
     
  3. Whether subjecting the accused to absolute liability would assist in promoting observance of the statute;
     
  4. Where a statute creates an offence for regulating social conditions and public safety and the penalty is monetary and moderately sized, the statute may more readily be read as imposing absolute liability.
     

Other Considerations

The Special Nature of Fisheries

A prime State responsibility is to protect her natural resources, especially those in the water that are vulnerable to undetected exploitation. In order to deter this exploitation, the State submit, offences need to be created that do not allow for excuses or defences to an unlicenced ship’s presence in local waters.

The prosecution has correctly pointed out that fisheries are an important national asset and that fisheries legislation is intended to act as a deterrent to illegal fishing.

In Re Director of Public Prosecutions; Ex Parte Lawler and Another — [1994] HCA 10; 119 ALR 655 at 673 McHugh J, discussing whether confiscation of a boat was unconstitutional, stated:

"Protection of the nation’s fishing grounds is a matter of high public importance. If protection is to be achieved, drastic deterrents may be needed. If the means selected are reasonably proportionate to the purpose of protection, it is for the Parliament and not this Court to say whether they should be used. In weighing the proportionality of Parliament’s response in this particular field, the utility of deterrent measures is of paramount importance. Illegal fishing in the vast expanse of the Australian territorial waters is difficult to detect and expensive to combat. The forfeiture of vessels engaged in illegal fishing not only sends a persuasive message to potential wrongdoers, it also prevents further illegal use of the vessels and renders the illegal behaviour of the masters and crews unprofitable. Knowledge by the owner of a foreign vessel that he or she can lose the vessel also assists in enforcing the Act because it makes it likely that the owner will exercise vigilance to prevent the vessel being used in breach of the Act".

Island states in the South Pacific simply do not have the resources of their larger neighbours New Zealand, and Australia to monitor their EEZ and enforce fisheries regimes. It comes therefore as no surprise that they incorporate absolute liability provisions to control the resource. Fiji’s regional responsibilities are such that the interpretation of this national legislation is assisted by its regional context.

What follows is a selected consideration of the law regarding fisheries offences in the greater Pacific.

Fisheries Legislation in the Pacific Islands

Tonga

The Tongan Fisheries Act 1989 provides:

11 Foreign Fishing Vessel Licences

(1) No foreign fishing vessel shall be used for fishing or related activities in the fisheries waters other than for marine scientific research or survey operations authorised under section 14 without:

(a) a valid foreign fishing vessel licence issued under this section;

(b) a commercial sport fishing vessel licence issued under section 8; or

(d) valid foreign fishing vessel licence issued under a multilateral agreement or arrangement in accordance with its provisions and any related agreement or arrangement described in section 12.

(6) Where a foreign fishing vessel is used in contravention of subsection (1), the master, owner and charterer shall each be guilty of an offence and shall each be liable to a fine not exceeding $500,000.

(7) Where a foreign fishing vessel in respect of which a licence has been issued is used in contravention of any condition of that licence, the master, owner the charterer shall each be guilty of an offence and shall each be liable to a fine not exceeding $250,000.00.

50 Onus of Proof for Licences

In any proceedings under this Act where a person is charged with having committed an offence involving an act for which a licence, authority or the permission of any person is required for the doing of the act, the onus shall be on that person to prove that at the relevant time requisite licence authority or permission was held.

In the case of R v Kim [2003] TOSC 55 the Hon Chief Justice Ward described the offence provision as one of absolute liability. He said:

"There is a fundamental presumption that an essential ingredient of a criminal offence is that the perpetrator must be proved to have had a guilty mind (or mens rea). However, a statute may create an offence which does not require such an intention and imposes an absolute liability on any one who performs the act. Whether or not such an offence is one of absolute liability will depend on the wording of the statute.

I am satisfied that the terms of section 11 of the Fisheries Act imposes an absolute prohibition on the use of a foreign fishing vessel for fishing or related activities in the fisheries waters without the requisite licence. Subsection (6) of that section and section 54(1) make it an offence of absolute liability in respect of the master, owner and, if there is one, the charterer. The prosecution does not have to prove mens rea in such cases."

Cook Islands

The Cook Islands has a similar regime as that of Tonga, and prohibits the operation of unlicensed foreign fishing craft in the economic zone (s12 Territorial Sea and Economic Zone Act 1977). In respect of an offence against s12, the onus of proof is on the defendant "to prove that at the time to which the charge relates, he held the requisite licence, permit, or consent" (s28). There is no statement about defences under the Act.

Following the reasoning of Justice Ward in R v Kim, the offence of fishing without a licence in the Cook Islands is in my view one of absolute liability.

Samoa

The regime in Samoa under the Fisheries Act 1988 provides a number of evidential presumptions against an accused that preclude any mens rea element or the defence of mistake. The onus to proof that the owner of a foreign vessel held a licence is on the defendant (s19). In reversing this onus of proof Samoa too is seeking to control her fisheries resources by creating an absolute liability for unlicenced ships in local waters. I could find no relevant decisions on the offence provision.

Vanuatu

The Fisheries Act [Cap 138] provides:

4. (1) No foreign fishing vessel shall be used for fishing or related activities in Vanuatu waters except under the authorisation of a valid foreign fishing licence issued by the Minister or an authorisation given under section 10.

...

(4) Where any foreign fishing vessel is used in contravention of the provision of subsection (1), the master, owner and charterer, if any, of such vessel shall each be guilty of an offence and shall each be liable on conviction to a fine not exceeding VT20,000,000.

(5) Where any foreign fishing vessel in respect of which a licence has been issued under this section is used in contravention of any condition of the licence, the master, owner and charterer, if any, shall each be guilty of an offence and shall each be liable on conviction to a fine not exceeding VT5,000,000.

In Public Prosecutor v Baek [1995] VUSC 9 the court in sentencing on a guilty plea stated that the offence of fishing without a licence was in a class of strict liability offences "and the standard of technical knowledge required of him (the accused) is the standard of an experienced captain".......who should know his exact location at all times.

Papua New Guinea

The Fisheries Management Act 1998 provides that "no foreign fishing vessel shall be used for fishing in the fisheries waters except pursuant to an access agreement and in accordance with a valid and applicable licence issued under Section 41 or Section 44" (Section 33(2)). Under s72 the burden of proof is on the person charged to prove that at "the relevant time the requisite licence or permission was held."

In the case of Lamiller Pawut v Lim Men Bee [1996] PGLAWREP 10 Andrew J was considering a sentencing appeal after guilty plea. He said:

"The Fisheries Act 1994 is designed, inter alia, to manage, develop and protect the Nation’s fisheries resources and marine, coastal and aquatic environments in such a way as to conserve and replenish them as an asset for future generations. There have been many statements in relation to the importance of a nation’s fisheries resources, eg: "The protection of the fishing grounds of the nation from foreign exploitation is somewhat akin to the protection of the country from smuggling. Drastic action in protection of the country’s interest in each instance may be regarded as warranted, indeed, if not to be expected. Each is an area where pecuniary penalties are unlikely to provide adequate protection", per Barwick C.J in Cheatley v R [1972] CLR 291 at 296. Further in MAF v Dubchack [1994] 12 CRNZ 576 at 587:

"As this case has shown plainly enough its Act is far from easy to enforce. New Zealand’s economic zone is vast, there are many taking large quantities of fish from it under licence or illicitly. The economic stakes are high, and the integrity of the resource is always at state. Surveillance is difficult and expensive."

Those statements are equally applicable to the circumstances of Papua New Guinea. To give effect to the intentions of the Fisheries Act various actions are considered offences in order to safeguard the nation’s fisheries resources. Section 57 of the Act prohibits foreign boats to enter, be in, or fish in fisheries waters of Papua New Guinea except for a purpose recognised by international law (ie the right of free passage) or as authorised by a fishing licence. The seriousness of the offences under s 57 are reflected by the penalties imposed, namely K25,000 for a crew member, K250,000 for any other natural person, which includes the master and K500,000 in the case of a corporation. Section 57 creates the offence of a foreign vessel being in fisheries waters and the intention of the Act is to make this a serious offence and the intention of the section is to severely and comprehensively deal with illegal fishing activities in Papua New Guinea’s fisheries waters."

The clear intention discernible in the PNG Fisheries Act; to impose severe penalties to ensure deterrence for illegal fishing activities for the protection of the nation’s natural resources; is consistent with the Fijian Legislation. Reversing the onus of licencing proof is an effective method of creating absolute liability for these offences.

The Republic of Nauru

The Fisheries Act 1997 creates an offence for unlicenced foreign fishing boats to be in Nauru fisheries waters (s.24). Subsection (5) removes the otherwise statutory defence of mistake of fact. The Act creates significant corporate ($500,000.00) and personal ($250,000.00) penalties. No qualifying language is used in the section. The section appears to establish an absolute liability offence.

Australia

The Australian Fisheries Management Act 1991 (Commonwealth) provides that certain offences are strict liability offences. Section 95 of that Act reads:

Offences

(1) A person must not:

(a) at a place in the AFZ, engage in commercial fishing unless:

(i) the person is, or is acting on behalf of, the holder of a fishing concession, or a scientific permit, that is in force authorising commercial fishing at that place; or

(ii) if a Treaty boat is used—a Treaty licence is in force in respect of the boat authorising commercial fishing at that place; or

(b) in the AFZ, be in charge of a Treaty boat that is being used for commercial fishing unless a Treaty licence is in force in respect of the boat; or

...

(1AA) Paragraphs (1)(d), (e) and (f) (and the rest of this section so far as it relates to those paragraphs) apply whether the contravention occurs inside or outside the outer limits of the AFZ.

(1A) A person does not contravene subsection (1) because of an act or omission that the person is authorised to do, or not to do, as the case may be:

(a) under the management plan for the relevant fishery; or

(b) under regulations made for the relevant fishery; or

(c) in relation to a by-catch under regulations made for the purposes of paragraph 14(2)(c).

(2) A person who contravenes paragraph (1)(a) or (b) with the use of, or in relation to, a foreign boat or in relation to a foreign fishing licence is guilty of an offence punishable on conviction by a fine not exceeding 500 penalty units.

(3) An offence mentioned in subsection (2) is an indictable offence but may be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.

(4) If an offence mentioned in subsection (2) is dealt with by a court of summary jurisdiction, the penalty that the court may impose is a fine not exceeding 250 penalty units.

(5) A person who contravenes subsection (1) in circumstances in which the person is not guilty of an offence against subsection (2) is guilty of an offence punishable, on conviction, by a fine not exceeding 250 penalty units.

(5A) Strict liability applies to subsections (2) and (5).

(6) It is a defence to a prosecution for an offence arising under paragraph (1)(c) if the person charged satisfies the court that the fish was not taken in the AFZ.

(7) A prosecution for an offence against subsection (2) or (5) may be commenced within 2 years after the commission of the offence.

The prosecution cited many Australian cases that discuss the importance of fisheries to Australia. They underscore the national and regional importance of the resource. Australia uses strict liability as a deterrent, but does allow limited defences including honest and reasonable mistake. However, by judicial activism, that defence is limited to applicable circumstances (cf Fa (supra) page 6).

New Zealand.

In New Zealand legislation relating to the conservation of fisheries resources has traditionally been regarded as an appropriate field for the imposition of strict liability public welfare regulatory offences: Fisheries Inspector v Wareham [1974] 2 NZLR 639; MAF v Griffiths [1989] NZHC 2792; (1989) 5 CRNZ 262, 264.

Since the New Zealand cases cited by the prosecution were heard, New Zealand has undergone a huge change in its fisheries regime. Most of the offence provisions under the Fisheries Act are now strict liability offences (after the 1996 Fisheries Act came into force), although there are some mens rea offences. There are limited mistake and no fault defences which the accused must prove:

240 Strict liability

In any proceedings for an offence against this Act it is not necessary for the prosecution to prove that the defendant intended to commit the offence, except in the case of an offence against any of sections 78A(8) and (9), 79A(8) and (9), 231, 233, 235, 257(2), 296B(5), and 296ZC(3)(b) and (c).]

241 Defence available under this Act

Subject to this section, it is a defence in any proceedings for an offence against this Act (other than an offence against section 231 or section 233 or section 235 [or section 257(2) or section 296B(5) or section 296ZC(3)(b) or (c)]), if the defendant proves 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; and

(b) In the case of an offence concerning the taking of any fish, aquatic life, or seaweed in contravention of any provision of this Act prohibiting the taking, or requiring the taking to be under the authority of a licence, permit, or [other authorisation issued under this Act], that—

(i) The defendant immediately returned the fish, aquatic life, or seaweed to the waters from which they were taken except where such return was prohibited by this Act; and

(ii) The defendant complied with all the [material] requirements of this Act in respect of the recording and reporting of the taking, return, or landing of the fish, aquatic life, or seaweed.

1. Repealed
   
2. A defendant is not, without leave of the Court, entitled as part of a defence provided by this section to rely on any of the matters specified in subsection (1)(a) of this section unless the defendant has, not later than 7 days before the date on which the hearing of the proceedings commences, served on the informant a notice in writing identifying the person or the nature of the accident or cause relied on by the defendant.
   

In summary those countries that have strict liability regimes and limited ‘mistake’ defences tend to be larger, and more equipped to monitor their EEZ (eg New Zealand, Australia or Vanuatu, who has French support).

The smaller states tend to have absolute liability offence provisions, and a rejection of mistake defences, perhaps due to the expense in enforcing fisheries regimes and the understandable lack of infrastructure necessary for effective territorial resource management.

The common theme throughout Pacific states is a recognition of this most valuable resource and a determination to both claim and manage fish stocks. Pacific courts are strongly protective of fishing resources.

Fiji is a signatory or participating member in all Conventions on the Law of the Sea, South Pacific and multilateral fish policy treaties and initiatives for the sustainable management of marine resources.

Parliament must have intended its Fisheries Law to be interpreted consistently with its inter state obligations. The co-operation of Pacific States in regional fisheries policy is rightly something I must take into account in the interpretation of Fijian Fisheries Law.

All the States share a strong common law tradition and therefore clearly understand the importance of the presumptions and burdens in criminal law. Yet, all have been prepared to lay aside those protections in pursuit of the greater good of this national and regional asset. This has two significant impacts. First, owners, captains and crew must know the risks they take for unlicensed fishing in our region. Secondly, these pacific principles underscore an argument for absolute liability for fishing offences in Fiji.

Decision

The subject matter of this statute is of vital importance to the country. It is clear that Fiji is endeavouring to regulate its precious fishing resources by incorporating the most effective deterrent power into law.

Small, under resourced, Pacific Island states can only protect their most valuable marine resource from the considerable threat it faces by sending a consistent and clear message to owners, charterers, skippers and crew that conduct of this type if discovered is inexcusable. Nothing less would meet Fiji’s duty to her own people. Nothing less would respect Fiji’s commitment to her oceanic sisters. There are therefore strong and valid policy reasons to find this provision creates an absolute liability offence.

I echo the words of His Honour Justice Speight in the Kim Case (supra):

"Those who exploit the world’s fishing resources with the ocean-going vessels of the fish defendant nations...have ample opportunity to ascertain the restrictions of the areas in which they propose to fish."

The language of the statute does not expressly state that mens rea is required. No evaluative terms for the actus reus are used. There is an absence of words such as knowingly or willfully. There is no statutory defence of mistake in the act. I find this language and context support the argument that these are absolute liability offences. I find the language, in context, gives clear warning to foreign fisherman that illegal fishing is inexcusable.

Although not determinative of the matter I am also of the view that in these days of reliable satellite global positioning and location systems (let alone the proficient use of a sextant and clock) a captain and his owner know where the ship is at any point in time. The defence of ‘mistaken location’ therefore appears likely to be difficult to raise in most circumstances and may be redundant. I hold a similar view in respect of the absence of a licence. We are long past free range harvesting of the sea. Pragmatically then what possible excuse for fish piracy can there be?

Parliament’s clear intention was to subject accused to absolute liability to assist in the observance of the Statute. Fiji can’t effectively police its local waters and so must rely on these deterrent measures to enforce an otherwise unenforceable law.

Prosecutions under Section 10(3) result in monetary penalties not imprisonment. The fines can be significant. They are accompanied by forfeiture provisions. However, in the context of the investment in the business and available profit from commercial fishing the penalties are modest and well in proportion. The resource being protected is of great significance and value. Therefore a sense of proportion dictates the level of mandatory penalty but does not exclude absolute liability. The penalty provisions reflect similar fines and forfeiture provisions in other Pacific Island states.

Accordingly I find the nature of the penalty does not exclude absolute liability and may be read as supporting it.

The offence is not truly criminal. The Act is concerned with Resource protection. A prosecution under Section 10(3) is more akin to regulatory or administrative enforcement than trial under criminal code.

Captains and owners must conduct themselves with care and prudence when harvesting our Pacific Ocean. They are well warned. They are deemed to know the law. The burden of compliance is on them not on poor states that cannot police the pirates. There is a legitimate expectation that those engaged in foreign fleet fishing will take care to comply with the rules. There is a legitimate expectation that non-compliance is inexcusable. There are ample precautions available to any person engaged in fishing to prevent inadvertent trespassing into protected waters. Ignorance of location or mistake as to liability for unlicensed fishing in the Pacific region would today be an incredulous defence of little merit.

For these reasons the necessary implication must be that s.10 (3) is an absolute liability offence and I so rule.

Gerard Winter
JUDGE

At Suva
2nd May, 2005