Regina v Wang Tian Fa [1994] SBHC 74; HCSI-CC 27 of 1994 (1 September 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No.27 of 1994

REGINA

-v-

WANG TIAN FA

(Palmer J.)

Hearing: 22nd August 1994
Judgment: 1st September 1994

DPP for the Crown
A.Radclyffe for the Accused

PALMER J: The accused is charged with two counts under the Fisheries Act 1972; namely, (i) failing to stow fishing gear contrary to section 7(4) and section 7(5) (b) of the Fisheries Act 1972 as read with regulation 11 of the Fisheries (Foreign Fishing Vessels) Regulations 1981; and (ii) fishing without permit contrary to section 7(1) (b) and section 7(5) (a) of the Fisheries Act 1972.

PARTICULARS OF COUNT 1.

The particulars of count 1 read: ‘That Wang Tian Fa, being master of a foreign fishing vessel named Fa Jeen Shin, being prohibited by section 7 of the Fisheries Act 1972 from fishing within the Fishery limits of Solomon Islands, on 3rd June 1994, within the said Fishery limits, failed to stow its fishing gear in such manner as prescribed in the Fisheries (Foreign Fishing Vessels) Regulations 1981.’

THE PROSECUTION CASE:

The crucial submission of prosecution relates to a number of fishing gears; namely, the mechanical hauler (used for hauling in the fishing lines and fish caught on them), some fishing lines with hooks, an electric fish hook stunner, fishing floats, some big hooks and nylon fishing lines. The allegation of prosecution as adduced in the evidence of Captain Wilson Maeriua (PWl), captain of the Police Patrol Boat, Auki, and supported by the evidence of Charles Apato, Coxwain in the Patrol Boat (PW2), was that:

(i) the mechanical line hauler was uncovered at the time of boarding,

(ii) the fishing lines with hooks were hanging on the rails in front of the bridge of the ship and not stored away,

(iii) the electric fish hook stunner which was attached to a bamboo stick and connected by cable to a power point in the bridge was not disconnected and stored away,

(iv) the fishing floats were not securely fastened and were lying loose on the aft roof,

(v) there was nylon fishing lines lying loose as seen in photos ‘F’ and ‘G’ in the album of photographs marked exhibit 10.

THE LAW

Section 7(4) of the Fisheries (Amendment) Act 1977 - No.9 of 1977 states:

"the fishing gear of any foreign fishing vessel which is prohibited by this section from fishing within the fishery limits shall, while the vessel is within those limits, be stowed in such manner as may be prescribed."

Regulation 11 provides how those fishing gear are to be stowed:

"Any fishing gear aboard a foreign fishing vessel not permitted to fish within the fishery limits shall while the vessel is within the fishery limits be stowed wholly inboard the vessel and-

(a) nets, trawl boards and weights shall be disconnected from towing or hauling wires or ropes and all mechanical hauling devices shall be sufficiently disconnected to be incapable of immediate use;

(b) if carried on or above deck, shall be secured to some part of the super-structure or hull of the vessel."

THE DEFENDANT’S SUBMISSION

The Defendant’s case is based on the meaning of the term ‘.....stowed wholly inboard the vessel.....’ It is submitted that all the fishing gear had been stowed wholly inboard the vessel and that therefore no breach had been committed.

MEANING OF ‘WHOLLY INBOARD’:

What is the meaning of the term ‘wholly inboard’? The word ‘inboard’ is defined by the Black’s Law Dictionary, sixth edition as: "In maritime law, and particularly with reference to the stowage of cargo, this term is contrasted with ‘outboard’. It does not necessarily mean under deck, but is applied to a cargo so piled or stowed so that it does not project over the ‘board’ (side or rail) of the vessel."

The above definition is consistent with the meaning applied in the case of Regina v. Jose Francisco Silva Finete and C & F Fishing Ltd, criminal case no. 4 of 1984 (more commonly known as the Jeanette Diana case), in which the question before the learned Acting Chief Justice, Mr Justice Coventry, was whether a red speed boat secured to the starboard side of the ship but in such a way that it was partly inboard and outboard was a fishing gear. Although no mention was made as to the meaning of the term ‘wholly inboard’, the fact that it was not raised as an issue in my view supports the view that the learned Acting Chief Justice must have accepted the meaning of the word ‘inboard’ as to be contrasted with ‘outboard’. The issue was never considered because it was held that the red speed boat was not a fishing gear.

Also in the same case, one of the issues which the learned Acting Chief Justice sought to consider was whether a rope hanging outboard over the portside of the ship was part of the fishing gear of the ship. The learned Acting Chief Justice found that it was used in the persing operation and therefore part of the fishing gear of the ship. He found that it was not stowed inboard and that therefore the Master of the ship had breached the provisions of regulation 11 of the Fisheries (Foreign Fishing Vessels) Regulation 1981.

I am satisfied that the definition given above is the correct meaning to be applied to the term ‘wholly inboard’. Each particular case however will have to be considered in the light of that definition.

(i) THE MECHANICAL LINE HAULER:

Regulation 11 requires that "......all mechanical hauling devices shall be sufficiently disconnected to be incapable of immediate use". The only evidence adduced and was not disputed is that this mechanical hauling device was uncovered. There is however, no evidence whatsoever to show that it was sufficiently connected to any power point or to any hauling line and therefore ready for immediate use. Accordingly, the allegation in respect of this fishing gear must be dismissed.

(ii) THE FISHING LINES WITH HOOKS:

Photos ‘E’ and ‘F’ of the album of photographs marked as exhibit ‘10’, show a fishing line with hooks hanging from the rails in front of the bridge of the ship. It is clear from the photographs that this is one of the many lines with hooks that are attached to the long-line when it is set. No explanation has been provided as to why it is left hanging on the rails and not stored with the rest of the fishing gear in the storage - room referred to by the accused in his evidence. However, the fact that it had not been stored in the storage-room or below deck does not necessarily mean that a breach of the Regulations had been committed. Regulation 11(b) did provide that if any fishing gear is ‘.....carried on or above deck, shall be secured to some part of the super-structure or hull of the ship.’ No evidence has been led as to how secure that fishing line is on the rails. The benefit of that doubt must accordingly go in favour of the accused. The allegation is also dismissed in respect of this fishing gear.

(iii) THE ELECTRIC FISH HOOK STUNNER:

I am satisfied that this is a fishing gear. It is a device for disabling or killing fish. The real issue is whether it has been stored in accordance with Regulation 11.

There is undisputed evidence that this device was lying on the starboard deck (see photo I) and the power cable still connected to the power point in the ship’s bridge (see photo E and the evidence of PWl) at the time the ship was intercepted and boarded by Police. No explanation is provided as to why this device was still lying loose on the deck with the cable still connected to the power point.

I am not satisfied that this device has been stowed ‘wholly inboard’ or secured to some part of the super-structure or hull of the vessel. The manner in which it has been stowed or left on the deck is in breach of Regulation 11. Had the power cable been sufficiently disconnected and rolled up and fastened together with the hook and bamboo attachments to the super-structure or bull of the ship, then no issue of breach would have arisen. I am satisfied beyond reasonable doubt that Regulation 11 had not been complied with.

(iv) FISHING FLOATS:

There is a photo of the aft roof on which the fishing floats were stowed in the album of photographs marked exhibit 10, at photo H. The evidence of prosecution was that they were lying loose on the aft roof. No other evidence has been adduced however, as to the proper manner of storage of these fishing floats, or as to where they should have been stowed in the ship, or as to how they should have been secured to satisfy the requirements of Regulation 11.

There is evidence adduced by Manasseh Avicks (PW6), Assistant Fisheries Officer (Licensing), that a visit was made to the ship by three officers from the Fisheries Division, Ministry of Agriculture and Fisheries, on the 5th June, 1994. A report was prepared on that visit and submitted as ‘exhibit 8’.

At paragraph 6, page 1 of that report a finding was made to the effect that the vessel had not stowed its fishing gear properly while transiting Solomon Islands waters. The only reference however, to the manner of storage was contained in paragraph 2 of the same page, in the fourth sentence, which read: "We saw fishing gear lying on the deck as well as along the rails foreward of the bridge." It was not adduced in evidence what fishing gears were referred to in the report. There was no mention of the storage of the fishing floats, and no opinion expressed by the Fisheries Officers as to the proper manner of storage.

The defence case is that the fishing floats have been stowed in their proper place.

It is for prosecution to prove beyond reasonable doubt that the storage of those fishing floats was not in accordance with Regulation 11. I am not satisfied on the evidence of PW1 as adduced, that a breach of that Regulation had occurred, and accordingly this allegation must be dismissed.

(v)BIG HOOKS:

There is a picture of two of these big hooks in the album of photographs marked exhibit ‘10’ at photos E and F. The evidence adduced is that they were hanging on the rails and not stored away.

The defence case is that these hooks were used to carry frozen fish from the freezers when transporting them around in the ship to other freezers or when berthing at the wharves. I am not satisfied that these can be regarded as fishing gears for taking, catching or killing fish. But even if that is not so, there is little evidence to satisfy me to the required standard that those hooks were not securely fastened to the rails of the ship, and that the manner of storage amounted to a breach of Reg.l1. This allegation is also dismissed.

(vi) NYLON FISHING LINES:

The nylon fishing lines referred to can be seen in photos marked F and G of the album of photographs marked exhibit ‘10’. The defence explanation is that those lines have already been cut into shorter strings and used for tying fish and sharks, and shark fins so that they are easier to carry when unloading fish or transferring them. In photo marked ‘L’, one can see how those nylon strings were tied around the fish in that freezer. I am not satisfied that those strings can be regarded as fishing gear and accordingly the allegation in respect of these is dismissed.

There is only one charge in respect of these many items of fishing gears, and accordingly it would be sufficient to enter a conviction where anyone of these items has not been stowed in accordance with Reg.11. Having so found in respect of allegation (iii), the accused is convicted accordingly of the offence of failing to stow fishing gear in accordance with the requirements of Reg.11.

COUNT 2.

The particulars of count 2 read: "Wang Tian Fa, between 24th May 1994 and 3rd June 1994, being the Master of a foreign vessel named Fa Jeen Shin fished within the Fishery limits of Solomon Islands, not being authorised to do so under a permit granted under section 7 of the Fisheries Act, 1972."

FACTS NOT IN DISPUTE:

It is not in dispute that at the time of interception and arrest of the fishing vessel it was located approximately at position 05 degrees 53 minutes 279 seconds south and 159 degrees 3 minutes 5 seconds east, well within the 200 mile fishery limits of Solomon Islands. It was not in dispute that at the time of interception, the fishing vessel was travelling in a westerly direction. It is also not in dispute that the album of photographs marked exhibits ‘5’ and ‘10’ show fairly accurately the state of things in the fishing vessel as at the time of boarding.

THE PROSECUTION CASE:

There is no direct evidence or eye-witness account of any fishing activity being conducted by the fishing vessel on interception of the ship by the Patrol Boat. The prosecution case relies heavily on circumstantial evidence or incriminating evidence found on board the ship at the time of apprehension by the Patrol Boat.

These included the presence of very fresh sharks in the portside freezer; fresh ungutted fish in the starboard snap freezer; fresh blood seen on the deck; wet hand-gloves, and a radio buoy that was still flashing. Coupled with these was the uncovered mechanical line hauler, and the electric fish hook stunner which was still connected to its power point in the bridge, and a hose that was still running at the time of apprehension. Prosecution seek to submit that when these factors are combined and put together, they would show to the Court very convincingly that this vessel must have been fishing within Solomon Islands waters not long before apprehension.

I remind myself that it is for prosecution to prove beyond reasonable doubt that the vessel had been fishing within Solomon Islands waters.

The crucial evidence of prosecution in my view is the fresh sharks and fresh fish and fresh blood seen in the ship by PW1 and PW2. The conclusion which prosecution seeks the Court to believe is that these sharks and fish as referred to in the evidence of PW1 and PW2 were fresh because they had been recently caught. And if the Court would accept their evidence that the fish had been recently caught, then it logically follows that these fish had been caught within Solomon Islands, which meant that the accused had been fishing contrary to section 7 of the Fisheries Act.

THE DEFENCE CASE:

The case for the Defence is that the boat had been fishing some three to four days prior to apprehension by the Patrol Boat. The last position marked by the accused where they last fished was at position 048 45".0" south and 169’ 12".5" east, well outside the fishery limits of Solomon Islands. They then headed in towards Solomon Islands waters on their way to Papua New Guinea waters as the accused had been feeling unwell, and in case he might need urgent medical attention, then it would be quicker to call in to Solomon Islands. The ship called in to Ontong Java on the morning of the 3rd June 1994, (the same day it was apprehended by the Patrol Boat), and after exchanging some clothes, and food with the Islanders there for fresh green coconuts, they set sail again for Papua New Guinea waters on a westerly direction, until apprehended by the Patrol Boat at about 1400 hours that afternoon.

ASSESSMENT OF EVIDENCE:

In his closing submission to the Court, the learned Director of Public Prosecutions sought to put a time period as to when the sharks and the fish may have been caught. He put the time as within a day or a little bit more before the ship was apprehended.

In the evidence oaf PW1 under cross-examination he expressed the opinion that because the sharks and the fish looked fresh and were soft to the touch that they must have been caught recently. He did not say how recent was recent; whether it meant the same day or within 24 hours. He was neither asked about that.

In the evidence of PW2, he formed the view that the sharks had been caught about a day before apprehension.

If we are to try and pick the possible dates as to when the sharks and the fish were caught, based on the evidence of PW1 and PW2, then the two possible dates are, (i) the day on which the boat was arrested, and (ii) the day prior to the date of apprehension, which is the 2nd of June 1994.

Assuming that the fish and sharks were caught on the day of apprehension; do the evidence adduced support that assumption? If one considers the appearance and condition of the sharks and the fish and the fresh blood, it would be consistent with a catch that has been recently made that day. As the fishing vessel was intercepted between 13.30 hrs and 14.30 hrs, the catch would have to be made sometime in the morning of that day. Was this a real possibility?

There is virtually unchallenged evidence that the long lines when set would be as long as 20 to 30 miles in length. In the evidence of PW6 under cross-examination he agreed that a long line could be as long as 35 nautical miles. He also agreed that it would take several hours to retrieve such a line, but did point out that the period of retrievement would also depend on the speed of the hauling machine. For a line that is 30 miles long, he estimated that it would take about 3 to 4 hours.

In the evidence of the accused, he stated that it would take at least 5 to 6 hours to put out the lines, and when retrieving, he estimated that it would take much longer, as much as 10 hours. This evidence, of the accused is virtually unchallenged, and I am prepared to accept his time estimates as opposed to the very generalised opinion of PW6. The time estimates in my view are not altogether unreasonable or exaggerated when one considers that a ship travelling on a steady course at say 6 knots would take 5 hours to cover a distance of 30 nautical miles.

If the lines were set on the morning of the 3rd June 1994, and taking the time estimates as provided by the accused into account, there is virtually no way that the accused would have been able to haul in his lines by lunch-time, and then steam off on a course to Papua New Guinea.

The evidence given by the accused in court was that on the early hours of the morning of the 3rd June 1994, he had called in to Ontong Java Island, anchored off-shore and exchanged clothes and some food with the Islanders for fresh green coconuts. The evidence of PW1 and PW2 on their observations of the freshness of those coconuts is that they would have been picked up within a day or so.

This is consistent with the evidence of the accused in court. There is a small twist to the evidence of the accused on the issue of. the green coconuts because when he had been interviewed by the three Fisheries Officers and asked about the green coconuts, he stated that he collected them from another fishing boat some days prior to the date of the interview, at an approximate position of 146 degrees east and 002 degrees south. In his evidence in Court he admitted that what he told those officers was not true. He explained in court that he was frightened that he may get into trouble if he told the truth that he had collected the coconuts from Ontong Java Island.

Prosecution have jumped on this blatent lie and submitted to the Court that he had impeached his credibility, and that accordingly, what he says in Court should not be trusted. If there is any particular caution to be exercised by the Court then it should be in respect of his evidence in Court as to where he got the coconuts from. The mere fact that he has admitted to a blatent lie does not necessarily render the rest of his evidence in court unreliable. The rest of his evidence must by weighed in the usual manner and ruled upon accordingly.

Having considered both accounts carefully, I am prepared to accept his evidence in court as the correct version of where he got the coconuts. The prosecutions view is that he had taken the coconuts from Ontong Java Island, and therefore, when he had initially denied that he took them from that Island, they had gone to great lengths to prove that it was practically impossible for coconuts to remain fresh even after keeping them in the cool room in the ship for 10 days. This was done by conducting an interesting experiment whereby coconuts were placed in the cool room for 10 days and then observing what their condition was. Their experiment was quite successful, and it seems that it was only after this that the accused then admitted to the Police that he took the coconuts from Ontong Java.

The significance that the prosecution seeks to place on the part those green coconuts play in the issue as to whether the accused had fished in Solomon waters or not is not clear. Mr Radclyffe, in my respectful view has to some extent quite correctly described them as a red herring. If the importance of the place where those green coconuts were taken is to establish that the accused was in the vicinity of Ontong Java not very long before the ships apprehension, then the admission of the accused has ended that speculation.

So accepting that the accused was at Ontong Java on the morning of the 3rd June, and that he had left in the words of the accused at around 7-8 am that morning and been sailing westwards, at between 5-6 knots, it is not unlikely that he would have been intercepted at position marked 05’ 53".279" south and 159’ 3".5" east. The approximate distance in nautical miles from Ontong Java to the position intercepted is 28 nautical miles. At 6.0 knots, the steaming time between those two points is 4 hours 39 minutes. The time difference between say 8 am and 2 pm is 6 hours. The accused stated that he did not have a watch but guessed that he left at around 7-8 am. Bearing in mind that this was a time estimate, it is not unlikely in my view that perhaps he left at around 9 or 10 am. If the ship had been steaming at 10 knots then obviously the time taken to travel that distance would be much reduced.

The submission of prosecution on this particular point however, is that the fishing vessel was not travelling at 5-6 knots as stated in the evidence of the accused, but rather he had been travelling at 10 knots, as calculated from the radar contact made by the Patrol Boat when first spotted and then boarded. Assuming that the fishing vessel had been travelling at a speed of 10 knots, then it would have to be travelling for a solid 3 hours before being intercepted at the position identified. Using the time period of 6 hours (8am to 2pm), this would leave only a period of three hours within which the fishing vessel would have to ‘shoot’ out its lines, catch the sharks and the fish and then retrieve them back and stow everything neatly away and set sail for Papua New Guinea within three hours thereafter. I think the word used by the accused to describe any such suggestion from prosecution was apt; impossible. There is no evidence adduced or suggestion made that the fishing vessel may have had some shorter long-lines which could have been used within such a short time. No other evidence too has been led which may have suggested that there were other fishing methods which the accused could have used to catch the sharks and fish within such a short space of time.

The possibility therefore that those fish were caught on that same day the ship was apprehended, must be ruled out.

What about the second possibility suggested that they may have been caught on the previous day (2nd June 1994). Assuming that the sharks and fish were caught on the 2nd June 1994, then most likely all the sharks would have been gutted and their heads out off and placed neatly in the portside freezer before the vessel called in to Ontong Java at sunrise on the 3rd of June 1994. The unchallenged evidence of the accused is that once the fish are hauled in, they are immediately gutted and the heads cut off and placed in the blast freezer located at the starboardside of the ship. The sharks or fish would be placed in the blast freezer for some three hours and then placed in other freezers. If the catch was of a small quantity then they would be placed in Freezer No.2, which is the portside freezer.

In the evidence of Moses Tealikimuli, (PW3) an officer from the Fisheries Division, specializing in refrigeration and air-conditioning matters, he estimates that fish which had been freshly caught and put in such a freezer as Freezer No.2, would take about 2-3 days to be frozen to the bones, at a temperature of about -25'C. Obviously if the temperature was at -1'C; then it would take longer. Smaller fish will obviously get frozen much quicker.

If the fish or sharks were placed in the blast freezer (located at the starboard side), then it would take about 10 hours for the big fish and sharks to be frozen to the bones. Smaller fish could take as short as 30 minutes to one hour, to be frozen to the bone.

If assuming that the sharks had been caught the day before the arrest was affected, then using the figures provided by PW3, the sharks would obviously be still soft and fresh to the touch on the day the ship was boarded by PW1 and PW2.

It took the fishing vessel 1 day 15 hours and 17 minutes to travel from the position of arrest to Honiara. When the sharks were inspected on arrival at the wharf, they were frozen stiff and had ice particles on them. A photo of those sharks is contained in the album of photographs marked exhibit ‘10’ at photo ‘L’. If those sharks had been caught on the 2nd June, 1994, and using the figures provided by PW3, the approximate period within which the sharks had been frozen would have been 2 1/2 days.

In the evidence of the accused, he stated that he had last fished some three to four days before the apprehension. If the figures provided by PW6 are used as to the rate of freezing, then the sharks should have been either frozen to the bones or sufficiently frozen. Unfortunately, no evidence has been adduced as to what possible rates of freezing would have occurred at say temperature ranges of -15'C and -20'C. Simple logic however must show that the freezing rate would be longer. It does appear that if the temperature in Freezer No.2 was kept at say -15'C, then a freezing rate of 3-4 days, and may be more, was possible.

The opinion evidence of PW3 must be construed cautiously because no experiments with freezer No.2 was conducted by that witness, and no scientific authorities were cited by that witness to support his estimate rates of freezing. For me to be sure that those sharks seen and touched by PW1 and PW2 had been caught a day or so before apprehension, would be pretty difficult to say. No scientific analysis had been made of those sharks to show their possible date of catch.

From the opinion evidence of PW3, it is not unlikely that the sharks placed in Freezer No.2 were not 3-4 days old. I cannot say that I am satisfied to be sure that those sharks were about one day old in Freezer No.2 and therefore I am satisfied that the accused had fished within Solomon Islands waters.

Prosecution had referred to the ungutted fish located in the cool-room of the ship which PW1 and PW2 had also inspected and touched: Their description of these fish was that they were also fresh and soft to the touch. They put the date of catch at the same time as the sharks in Freezer No.2.

The evidence of the accused is that the fish had been caught some 3 - 4 days earlier and had been kept in the cool-room at a constant temperature of around 0'C, to retain their freshness for their personal consumption. In support of this explanation, a refrigeration and air conditioning expert was called by the Defence to give his opinion as to the possibility of keeping ungutted fish at 0'C for four days and whether such fish would still retain its freshness and be edible.

A report has been filed by this witness, John Cheffers of the Honiara Refrigeration and Air Conditioning Ltd, and marked exhibit 11. A paragraph 4 of page 1 of his report he stated:

"Freshly caught fish, if promptly and correctly gutted and handled, will keep up to 10 days unfrozen if quickly chilled to 0 degrees centigrade. Temperature of storage is rather critical as the length of time fish can be safely stored unfrozen reduces dramatically the higher the temperature above zero. For example, the degree of deterioration of fish kept at zero for 10 days is equal to 4.5 days in storage at +5 degrees C."

In his evidence under oath, Mr. Cheffers identified the source of his figures as derived from the National Seafood Service, in Hamilton, New Zealand. Little challenge has been made to the authenticity of the source and the accuracy of the figures provided.

At the last paragraph in page 1 and top of page 2, he made the following observations:

"The cool room in which the fish was stored is definitely capable of maintaining 0 degrees C. Therefore I would consider the claim that the fish was still fresh and edible after 4 days storage in this coolroom quite reasonable."

The evidence of Mr Cheffers is to be contrasted with the evidence of PW3. PW3 was of the view that fish kept at ace will not keep for several days. At the most, he reckons it would keep for about 24 hours. For ungutted fish, he reckoned that it would spoil very quickly. Under cross-examination by Mr. Radclyffe he conceded that fish may be fresh for 4 days at such a temperature. He conceded that such a fish would be soft on touching and will be fresh and edible.

Again I remind myself at this point that it is for prosecution to prove its case beyond reasonable doubt. No experiment was conducted in respect of this cool-room and the possible rates of deterioration of freshly gutted fish and ungutted fish. No scientific data too had been provided in support of the opinion evidence of PW3 which would have the effect of convincing me that I should accept the opinion evidence of that witness as opposed to the opinion evidence of Mr Cheffers. I am satisfied I cannot be sure that ungutted fish kept at a fairly constant temperature of ace will not last for at least 4 days.

"THE FRESH BLOOD SEEN ON DECK"

The significance which prosecution seeks to attach to the blood seen on the portside deck is that it is the fresh blood of fish recently caught. The assumption sought to be drawn as to its freshness, is that the blood seen by PWl and PW2 was wet and red. Unfortunately, no scientific analysis of the blood seen was carried out to establish whether it was indeed fish blood or human blood.

If it was assumed that the sharks and the fish had been caught the day before the ship was arrested, then it only seems logical that the blood would have dried up over the period of 24 hours and perhaps had turned red again when water is sprayed over it some time during that day. If this explanation is accepted, then it seems not highly unlikely that the explanation provided by the accused is quite reasonable. No expert evidence however is provided as to what happens to blood when it has been left out in the open for say 24 hours or 3 days. No evidence is adduced as to how long blood will retain its red colour, and whether, dried blood when it comes into contact with water or sea water again will become red again. The Court cannot take such matters for granted in situations where their significance may result in the conviction of an accused in a criminal trial.

I am not satisfied that prosecution have established the crucial link and must dismiss this allegation.

"THE FISH EGGS"

Again the significance which prosecution seeks to attach to these fish eggs is that they have been removed from recently caught fish. In the evidence of PW2 he says that the fish eggs were soft to the touch and still looked very fresh. He estimated that they were about a day old since caught. He also pointed out that some were red in colour whilst others were white.

In the evidence of the accused, he explained that the red fish eggs were about 8-10 days old, whilst the ones coloured white were about 4-5 days old. The accused pointed out that the fish eggs would be dried in the sun for sometime and then later deep-fried for personal consumption. He stated that the fish eggs are put out only in the sun. If it is raining or night time, they are stored away.

Again I am not satisfied that the link has been established in respect of these fish eggs. No evidence has been adduced as to the process of drying foods, especially fish eggs in the sun and the colour changes, and or other material changes, to the appearance or such eggs, over time.

"THE WET HAND GLOVES"

The significance which prosecution seek to attach to these wet hand gloves is that the crew must have been using them to clean sharks and fish. It is not disputed that that was the purpose of those gloves. Unfortunately, the prosecution witnesses could not say that there were more than two or three wet hand gloves hanging on the deck rails. In his evidence in court the accused pointed out that if they had been fishing then at least 8 pairs of hand gloves would have been hanging there. The total number of crew including the accused onboard the fishing boat is 12. I accept the simple explanation of the accused, and therefore would attach little significance to the existence of the wet hand-gloves on the deck rails as observed by the prosecution witnesses. The most that can be attached to those gloves would be that someone obviously had been working on the deck. However, it cannot be conclusively established that one or two persons were fishing. From what I have already ascertained in this judgment, it would be impossible for only a few persons to work the long-line.

"THE RADIO BEACON"

The particular radio beacon which is of interest in this case can be seen in photo D in the album of photographs marked exhibit ‘10’. This particular beacon is the one with a flash light attached to it in the photograph. The evidence of PWl is that when the ship was boarded, the flash light attached to that radio beacon was still flashing. The importance sought to be attached to this is that the radio beacon must have been just recently pulled out of the water and that would seem to be the reason why that light was still flashing. PWl gave evidence that there were certain radio beacons which were activated on contact with sea water. This meant that when such beacons are pulled out of the water then they continue to function for another couple of hours before turning off. Unfortunately, no attempt was made to investigate this particular radio beacon and the flash light attached to it to see if it operates in the manner described. In his cross-examination of PWl and PW2, Mr Radclyffe pointed out to them that the flash light which they said was flashing at the said time of arrest was actually a separate attachment to the radio beacon. He pointed out to them that the flash light brought into court and shown to them was in fact the flash light seen in the photograph, and then purported to show how it would operate. The flash light is operated by battery, and is activated when the amount of light drops below a certain level. Both witnesses have been unable to deny the demonstration shown by learned Counsel for the accused. I attach little significance accordingly to this object.

OTHER MATTERS:

In the evidence of PW1, he referred to the port side snap freezer in which he saw the fresh sharks stored. However, it is clear that he was confused because in the later evidence of PW3 he provided a useful diagram to the court marked as exhibit 6 and identified that freezer as a normal freezer. The only snap freezer in the vessel was the one located at the starboard side of the ship. This finding is consistent with the evidence of the accused, that in cases where the quantity of fish caught is not many, then fish are stored in the No.2 Freezer. The number of sharks stored in that freezer was not many.

There was mention made of the line of travel of the accused at the time of apprehension. It was suggested that the accused may have been travelling to Roncador Reef with illegal intentions. However, it was not denied that the accused was travelling in a westerly direction, and that had he continued on his line of travel he would eventually enter Papua New Guinea waters from the Bougainville area. The accused did provide an explanation that he sought to travel near Solomon Islands as he had not been feeling well and that should he need urgent medical attention then he could drop in very quickly for that purpose. A copy of a medical report marked exhibit 12 has indeed been filed which does indicate or confirm that there may be some problems with the liver of the accused. This report has not been challenged and accordingly must be accepted and considered in favour of the accused.

CONCLUSION:

Taking all the above facts into perspective, I cannot say that I am satisfied to the required standard of proof that this accused had been fishing as recently as a day before or a little bit more than the day he was apprehended, and accordingly I cannot be certain to be sure that he had fished within Solomon Islands waters in the period stated in the charge.

Accused acquitted on this charge.

(A.R. Palmer)
JUDGE