Crown drops its appeal against two not-guilty Cairns fisherman

[Shane Boese]

DEPARTMENT of Public Prosecutions (DPP) has dropped its appeal against the not guilty finding by the Cairns Magistrate’s Court of two men accused of illegal fishing in the Great Barrier Reef.
Cairns Chairman of the BIAQ, Wayne Bayne, said an appeal by the DPP set down for June 18 against the magistrate’s finding had been dropped.
Mr Bayne said the two men, David Burke and Stephen Clarke, had been found not guilty last year of fishing in green zones because Global Positioning Satellites (GPS) were not accurate enough to identify their location.
Mr Bayne said the refusal of the DPP to proceed with its appeal raised questions about the conviction of other fishermen based on GPS evidence.
He said correspondence received from Federal Environment Minister Malcolm Turnbull had demonstrated a reluctance to reconsider the plight of those previously convicted.
Mr Bayne said hundreds of fishermen, who had been charged, but did not legally challenge the claim with a not guilty plea, had been fined and had received criminal convictions.

[Shane Boese]

Hooray ................. one for the fishermen!

We can make a difference after all!

Regards, Shane

[FNQCairns]

So in law can the sacrifices appeal? - if they can afford it, I suppose, Egalitarian society my winking brownie!

America II we have arrived

cheers fnq

[disorderly]

Is this some type of political bargaining?
DPP wont proceed with appeal as long as federal environment minister decides not to reconsider the evidence that lead to hundreds of other fisho's being convicted,despite similar evidence finding these two fisho's not guilty.
Am I reading that right?

Scott

[Adamy]

Is this some type of political bargaining?
DPP wont proceed with appeal as long as federal environment minister decides not to reconsider the evidence that lead to hundreds of other fisho's being convicted,despite similar evidence finding these two fisho's not guilty.
Am I reading that right?

Scott

Hi Scott,

I think it has more to do with the legal process than any political bargaining - at this stage at least. The reason David Burke and Stephen Clarke "got off" was because they elected to fight the case rather than pleading guilty and copping it sweet as did the other people convicted.

Clarke and Burke 'got lucky' because they had the moxy to stand up to the GBRMPA bureaucrats and had some great support from some other guys with the moxy to stand beside them - namely TFPQ...

This one didnt happen by accident - The exec at TFPQ put a hell of a lot of man hours into this case as they did with helping the displaced fishing and boating industry up north to get the compensation they did ($200million and counting)- TFPQ helped many in the industry process their claims... for nothing but the satisfaction of assisting the industry - they cant ask for and didnt get any "commission" from any of the deals.

Anyway back to your question... once the conviction has gone thru and been processed, it cant "just be undone" each and every conviction has to go through the court process and be appealed - they cant lump it all together as a single claim because each conviction was recorded under different circumstances.

As I understand it TFPQ is still working hard behind the scenes to get the conviction quashed via an act of parliament rather than the cost of doing each one separately - individually through the courts process - which could take years and yes! that would only be available to those who can afford it.

So I hope that kind of answers the question -

Off topic: TFPQ has been getting a bit of a caning lately on this site but they are just a few guys (that are doing the work) under the gun and under some big pressure and not getting the thanks they deserve - they arent like real pollies - they dont get paid for doing what they do - they just do it - most of them are very tired and and I know they would like a rest - but if they stop now then the greenies and Bureaucrats have won. Oh and most of the exec arent members of Ausfish (sometime we think that Ausfish IS the fishing world - but its just a small patch - a nice patch but still a small patch)

Cheers,

Adam

OK... shields are up - fire away!

[disorderly]

Thanks for that Adam,

I mistakenly thought that a class type action or decision may have been possible due to the fact that it appeared that the reason the 2 fisherman got off was because of the inherent innacuracy of gps as a location devise.
I didn't realize that any legal appeal would have to proceed on a case by case basis-and as FNQ says above-the cost per individual case would be no fun at all.
So good luck TFPQ in getting that act through parliment.

Keep up the good work!

regards Scott

[Jack Thomas]

indeed that we truely have a word and are a force to recon with!

[kc]

Just to clarify a little. The original case was heard before a magistrate and the "not guilty" verdict, based on GSP issues , does not set precident and as such has no bearing on previuos convictions (leagally if not morally).

Had the appeal gone ahead (in a high court) the the issue of GPS as the "sole means of fixing a position" would have been tested "at law" and would have set a precendent, which, if successful, would have resulted in all previuos conviction "having" to be overturned.

Given that the AMSA and marine law world wide maintains a stance "at law" that GSP can not be used as the "sole means of fixing a position" then the DPP and the commenwealth was on a hiding to nothing with this case and dropped the appeal.

From TFPQ perpective...we would have loved this to have gone to court. This whole issue is not over yet...not by a long shot.

KC

[bugman]

Sorry guys,

I missed a lot of the details on this being down here in Tassie but what did they use in their defence.

Did they argue their GPS told them they were outside the green zone. How far is what I'm interested in - 5 metre 50 metres, 500 metres, 5 kilometres????

Sorry I'm not being cycnical - just interested in the details.

Brett

[Adamy]

Sorry guys,

I missed a lot of the details on this being down here in Tassie but what did they use in their defence.

Did they argue their GPS told them they were outside the green zone. How far is what I'm interested in - 5 metre 50 metres, 500 metres, 5 kilometres????

Sorry I'm not being cycnical - just interested in the details.

Brett

Hi Brett, the whole story and lots of comments ,arguments and counter arguments can be found at: http://www.ausfish.com.au/vforum/sho...d.php?t=105436

Cheers,

Adam

[bugman]

Ok,

I was being cynical and the other thread reinforces my level of cyncism.

The gents got off on a technicality as a result of incorrect penalty provisions which were unable to be proved though law.

As KC suggested maybe GBRMPA should have taken more instruction when drawing these up.

I'm not sure we should be getting too excited about this though. Why would we want to make a loophole to allow people to break the law deliberately without impunity.

If it wasn't fishing and related to drug importation - or worse still some other abhorent crime, would we be relishing such a court decision.

Fix the penalty provisions by all means but don't be happy about prooving a point when it allows wrongdoers to go free.

Brett

[Adamy]

Bugman,

Cant address your actual issues... but I think the reason some people are happy that these guys got off - including me - is the whole GBRMPA issue which is about to be duplicated here in South East QLD with the wholesale closure of prime fishing/recreational areas without any scientific basis. AND the associated LAW which made a CRIMINAL of anyone who dared trespass GBRMPA's invisible boundaries. Thats the main issue - a criminal record where a fine would have sufficed.

Before this issue was addressed, there were people who were coping mandatory criminal convictions (which have no use by date - they hang around forever) while there are other people getting away with much worse offences getting a slap on the wrist and no conviction recorded - there is no justice in that.

What about the Grandad with no GPS who drifted into the zone and hence is now labeled a criminal?? You can be cynical - thats your right! But when the law make criminals out of simple mistake then every angle should be taken to take the sting out of that laws tail - and thats what this is about - not the celebration of flouting the law but the legal right to address a law and methodology which was wrong to start with.

Via this process TFPQ has been able to have some of these wrong addressed - now if you inadvertently wander into a green zone - they issue fines instead of criminal records. They are also pushing for Govts to learn from the mistakes made by GBRMPA so they are not replicated in the rest of the country, which was/is more than a real risk. The only way Govts will learn from these mistakes is to have them pointed out to them - in a very harsh manner - otherwise they simply dont listen.

The Libs were so keen to show off their environmental credentials that they forgot what happens to real people and I bet the north of this state will make them pay at the next election. It should serve as a warning to future Governments who want to impose draconian measures without adequate reasons.

Cheers,

Adam