Green Zone Update

[kc]

For those who followed the issue of the removal of criminality from Marine Park infringments another chapter was played out in the Cairns magistrates court today. Handing down a decision, which he originally resevered for 1 month. Magistrate T Black ruled both GPS, as a means of fixing a position AND the official GBRMPA maps, were inadmissiable and dismissed chages against the defendant (no case to answer).

This opens a whole "can of whoop arse" in respect the 322 people who have previuosly been convicted using this evidence.

More to follow as we get detailed legal; advice. Only happened an hour ago.

KC

[nonibbles]

:beer: And the crowd goes...
:laola:
This is seriously good news

[Adamy]

Thats great!!!;D

So I guess its back to the ole drawing board for GBRMPA??::) Potentially good news for those that have been convicted... please keep us informed as to the progress.

Have you anticipated GBRMPA's next move?

Adam

[seatime]

Heard they have commissioned the building of new boats and are recruiting staff to crew them, poaching them from other agencies.
The public $$$$ spending continues.

[Dicko]

Not sticking up for GRUMPA here, but I actually find that a bit odd. The GPS system is recognised as a means for indentifying a location by everyone from from NASA to the humble in car user. If this judge has decided it's not an admissable system to reference a location, what does he propose ? Signs and fences ? :-/

[disorderly]

Hi kc,
Any chance of some more details or a link to the story.Like dicko, I'm a little bit confused on a judge ruling that a gps couldn't be used to fix a position.I really dont understand.

cheers Scott

[kc]

A bit more explanation.

The AMSA, Australian Maritime Safety Authority, and other similar bodies worldwide, have taken the view that a GPS can not be used as the "Sole" means of fixing a position.

That GPS are prone to occassional error is well documented so any time a GPS fix is used for navigational purposes, it must be confirmed or cross checked by other navigational meams (radar, fixed compass bearing etc).

The GBRMPA officers have only ever used GPS and have never cross checked. This makes the "evidence" flawed and invalid. Had they cross checked then there would be no issue in respect of GPS.

The next issue is the charts. These GBRMPA charts are clearly marked with a disclaimer that they "Are Not a Navigation Device", only the official hydrographic charts are allowed (at law) to be used for navigation and yet the GBRMPA continually use these maps to fix positions (navigational purposes).

What this case has done, IMO, is demonstrate a flaw in the system of gathering evidence, which has in turn been used to prosecute 322 people and give them criminal records.

This will not change admissibility of GPS data but it will require that such data be cross checked for accuracy and it will invalidate the GBRMPA maps in resepect of any legal fixing. Only the official charts will be admissible.

The current zonings, in degree, minutes and seconds, can not be fixed on an official chart, as we told them 3 years ago....and they ignored. It will make existing boundaries very blurred and may require a revisit of the bourdies to make them compatible with the official charts.....which they could have done 3 years ago but chose to ignore input!!

This is all pretty complex but if anyone wants the nitty gritty I have it available by PM.

KC

[kc]

Published today in Townsville

Fish fines in doubt
By DANIEL BATEMAN (batemand@nqn.newsltd.com.au)
20feb07
MORE than 300 recreational fishermen could have their convictions overturned after a pair of Cairns anglers showed fisheries officers could not accurately place them in Great Barrier Reef marine park green zones.

In a court case the fishing industry has branded an historic win in the fight against unfair penalties for fishing in marine park green zones, anglers David William Burke, 40, and Stephen John Clarke, 39, successfully argued in Cairns Magistrates Court that global positioning systems (GPS) were not accurate enough to prove they were inside a green zone when arrested. The fishermen were caught by fisheries officers angling off Michaelmas Cay on December 9, 2005.
Prosecutors presented evidence from the arresting fisheries officers and a geographic information systems officer.
Defence gave evidence from a marine instructor who has trained up to 700 skippers and a marine electronics engineer with 25 years' experience.
Magistrate Trevor Black found the fishermen not guilty of breaching the Great Barrier Marine Park Act, as prosecutors could not reliably place the defendants within a marine park zone.
Although stopping short of labelling his decision a test case, Mr Black conceded the decision held 'a measure of public interest'.
Mr Burke and Mr Clarke were each awarded $1500 costs.
Cairns solicitor for the pair Myles Thompson described yesterday's win as setting a precedent for potentially most of the 322 fishermen fined and convicted for a similar offence.
"Anybody who's been convicted of an offence based upon GPS evidence should write to the federal Attorney-General and demand that their record be expunged," Mr Thompson said.
"Mr (Philip) Ruddock is going to be a busy lad."
The Federal Government late last year amended previous penalties to give enforcement officers the ability to issue on-the-spot fines to recreational fishers found illegally fishing in green zones, rather than a fine and a criminal conviction.
Queensland Fishing Party chairman Kevin Collins said the historic win would put pressure on legislators to revisit 'flawed' evidence against recreational fishermen.
"A significant precedent exists in so far that if a speed camera is found to be faulty, then everyone who has been fined using that speed camera ultimately has their fine repaid," Mr Collins said.
"We've got to work through the legal process now and just see what's involved in that.
"It has fairly major ramifications."
Recreational fisherman Ray Critelli, who has spent close to $10,000 in legal fees arguing fisheries officers landed him in a green zone because of a plotting mistake, said he would now look into further legal action

[aok47]

The GBRMPA officers have only ever used GPS and have never cross checked. This makes the "evidence" flawed and invalid. Had they cross checked then there would be no issue in respect of GPS.


For an offence that results in a criminal record these GBRMPA officers dont seem to be taking it too seriously or else they would've known the law and the requirement for cross-checking and not relying soley on GPS. >:(

Cheers

AK

[Matt_Campbell]

Just another example of where magistrates dont have a practical knowledge of fisheries matters. As a result, offenders are let off. Let me ask you all, if this had happened to a commercial fisher, what would your opinions be?

[Gary Fooks]

The Cairns Post today (Wednesday 21st) carries a further story.

The parts that interested me the most I have re-typed below.


“The Great Barrier Reef Marine Park Authority yesterday said that global positioning satellite devices would continue to be used to enforce fishing laws.

Its statement comes after Cairns Magistrate Trevor Black on Monday dismissed charges against two anglers accused of fishing in a Green Zone.”

I am told that ABC radio had carried similar interviews with executive director John Tanzer.


Someone suggested to me that his statement is contempt. I don’t think so but it does seem … silly.

[kc]

Just another example of where magistrates dont have a practical knowledge of fisheries matters. As a result, offenders are let off. Quote from Matt.

With respect Matt, the magistrates do not are are not required to have a knowledge of fisheries matters, they are required to have a knowledge of the law and the presumption of innocence is extended to all people under our system, including commercial fishers.

Those who ARE suppossed to have an understanding of fisheries issues, including navigation, are the GBRMPA enforcement officers. They got this wrong. They have been getting it wrong since day 1. They have known that they have been getting it wrong since before day 1 and chose to ingnore the issue and bully people into submission.

I do not condone anyone breaking the law, even if the law is stupid, nor could I ever be branded a "hand wringing civil libertarean", but this is, was and continuies to be morally and now legally wrong.

Flawed evidence has been used to convict people.....mores the point the authorities knew it was flawed evidence and yet went ahead and convicted people anyway, including giving people criminal records.

They need to be taken to task on this. The GBRMPA displayed an amazing level of arrogance during RAP and refused to listen to input. This has now come back to bite them on the bum and the executive director of GBRMPA, John Tanzer, is being quoted widely today in the North as saying he will basically ignore the ruling and proceed on his merry way....not good enough. GBRMPA are not a law unto themselves and it is about time they start realising it.

There is a technical issue over the maps which may result in the maps being redrawn and GPS must be used in accordance with AMSA legal requirements. If they do this then future court action will go unchallenged but as it stands, right now, the system does not prove, beyond reasonable doubt, that these people have been fishing in green zones.

KC

[grahams]

I presume these guys were on the edge of the green zone to raise doubt with the magistrate. Does anyone know how far in the green they were reported to be?

[Adamy]

I presume these guys were on the edge of the green zone to raise doubt with the magistrate. Does anyone know how far in the green they were reported to be?

They could be in the middle of the green zone - it doesnt matter - its a point of law regarding to the methodology used to catch them not where they were located - but HOW they were located!

The implications to recreational fishos (locals and tourists) who were also caught using the same methodology, who may have inadvertently wandered into the green zone due to navigational errors etc. is that they MAY have a case to have their convictions scrapped.

I think its a great win for our Northern cousins, both rec and commercial. Its not going to do much for allowing fishing in green zones but it will help those who have been convicted and now have criminal records for what always should have been an infringement.

The courier mail has picked up the news - watch out for tomorrows edition.

Adam

[kc]

Adam has this about right. The details of this particular case and the alleged location within a green zone are not relavent. The prosecution was not able to convince the magistrate, beyond a reasonable doubt, that the guys were in a green zone...that's that!!

The implications, Australia wide, is that any future marine park breeches will have to be carried out in a far more professional manner and any future marine park zoning maps should conform to the units of calibration used on a hydrographic chart.

TFPQ does not condone fishing in green zones and does not condone the actions of these particular anglers, or any other who have fished in green zones BUT the onus of proof and the fault in this whole sorry saga lies with an arrogant, out of touch bureaucracy who refused to listen, refused to acknowledge they were wrong and still, as at yesterday, are still refusing to acknowledge they are in error.

This is not over yet and TFPQ will not let it rest until it is.

KC

[kc]

Here is a small example of the "law unto themselves" attitude of the GBRMPA.

On Tuesday John Tanzer, executive director of GBRMPA is quoted in the Cairns post defending the marine park maps and rejecting calls for the redrawing of boundaries.

The actual "judgement", now to hand, says in part "I (being the magistrate)take the view that for a mariner to rely soley on the information contained in the MPZ30 map,constitutes negligence within the meaning of the Commonwealth Criminal Code"

These are the same "Maps" which have been used by GBRMPA in court prosecutions and the same maps we told them 4 years ago were wrong!!

The maps do need to be redrawn and the lines and reference points positioned so as they can be transposed onto an official hydrographic chart.
This should also be a lesson for future MPA's Australia wide.

GBRMPA are not above the law....they need to listen for a change.

This issue still has legs a a few more days to run in the press and then some more work to do to get it fixed.

KC

[madmix]

Congratulations to all involved.

As I understand RAAF,Navy,Customs,Coastwatch etc, can not
rely solely on GPS data to prosecute incursions into Australian Waters, so.
why should GBRMPA. Oh thats right their an arrogant bunch of
A..holes who think they can do anything.

Cheers Mick

[thargor]

The actual "judgement", now to hand, says in part "I (being the magistrate)take the view that for a mariner to rely soley on the information contained in the MPZ30 map,constitutes negligence within the meaning of the Commonwealth Criminal Code"

These are the same "Maps" which have been used by GBRMPA in court prosecutions and the same maps we told them 4 years ago were wrong!!

The maps do need to be redrawn and the lines and reference points positioned so as they can be transposed onto an official hydrographic chart.
This should also be a lesson for future MPA's Australia wide.



Well Im confused about all of this.

Charts, any charts, are used as a "guide" to navigation. Whether I pick up a kids painting of the barrier reef or an official hydrographic chart I consider both as merely a guide - nothing else.

What I am purely interested in when I go fishing is the long/lat (WGS84) coordinates on these GBRMPA charts (and for sure where the reef is, depth etc ) that define a boundry of a particular zone. These long/lats are written on these GBRMPA charts such as the MPZ30.

I input those coordinates into my GPS and create a line between them. I then know not to pass that line. How that line is transposed onto any chart doesnt concern me. Its the line and my relative position to it that concerns me.

I know my GPS unit is generally accurate within 3 metres (it actually tells me the error at any particular time which is generally 3 metres or below). I have a Garmin 12. Newer GPSs actually show a ring around your vessel showing error.

I hear some people say that the use of a GPS alone to define a position is flawed. Well OK they could use a radar (generally accepted that you include a .2nm error when using it for navigation), a sextant (you would generally accept that you would be out by minutes) , a compass (merely a bearing) , a sounder (well depends where you are), a tape measurer (I hope they make them in lengths of nm).

GPS has been widely accepted as one of the best means of finding a position on this planet. Hell you can even use a combination of them to find true north. Ive used them for years and they are just so damn good whether in a car, on a farm, camping, hiking, boating - whatever.

I agree with some of what the magistrate was saying in regards to "inaccuracy". yeh sure GPS does have some error but there will be an error in any form of measurement in determining a location. How that error is catagorised is important. GPS error of today is generally measured in less than 10 metres. Throw a DGPS into the mix and its within a metre.

At the end of the day our legal system relies on "beyond a reasonable doubt" . Doubt a GPS unit? I have never doubted mine. Works a treat.

[disorderly]

Hi thargor,
This apparent scorn for the gps is also perplexing for me.
Take me to any point out within reach of my boat(100km's out if necessary).Let me punch a button on my gps and I will take you back to that exact same spot tomorrow.
As I have said before, if you have been found to be fishing just inside a green zone(a warning might be sufficient).If you are obviously fishing in a green zone and are caught then pay the fine(nowadays) and accept responsibility for your actions.
Me personally,I just find somewhere to fish where there is no danger of encroaching on a green zone.
Fishing is about relaxation and enjoyment for me
Why would i want to jeopardize it by a run in with the fishery boys.

cheers Scott

[Adamy]

Hi Thargor and Scott,

You are both right!! But unfortunately its not really about "to GPS or not to GPS" its about points of law... its weird really what seems to make common sense may not be "lawful".

I, like you, trust my GPS it's pretty good most of the time - unless it runs out of batteries or something else... Oh and the unit is only as good as the operator - personally I dont know how to set it up so that I can make a way point at the different green zones entry points and have it tell me when I have crossed an invisible line - particularly when I have it zoomed right in and cant see where the next entry point is so I can draw my invisible line. I personally dont like it how they were able to give someone a criminal conviction due to his/her lack of knowledge on how to effectively use a GPS. Anyway - if I punched in all the co-ordinates for every green zone - I wouldnt have enough room for my own spot x's.:P

But thats my personal beef with the whole system... comes down to user knowledge I suppose - Just wouldnt want to be one of the 322 other guys who got convicted because of that!

So if they can slow the GBRMPA "police" down a little bit with legal mumbo jumbo and get some guys who are as bad as me with their GPS's off the hook - then yippee I say!

Just my two cents!

Adam

[madmix]

I don't think the scorn is directed at the GPS system perse,
Perhaps if the prosecution was to present evidence from
a USA defence official that the data supplied to an individual
GPS receiver was 100 percent accurate at any given specific time.
(Hardly likely)

To rely on the data as uncorroborated evidence is unacceptable.

Everyone knows there are errors in the GPS system, mine regularly
has my boat 150m above sea level (yes it is in the water), and
when it comes to evidence, either it is 100 percent fact or corroborated
by some other means.

cheers Mick

[disorderly]

Adam and Mick,
I understand the legal arguement pertaining to the point of law which suggests that because the gps system is not 100 percent accurate that any conviction arising from its use to convict said person is legally wrong.
What I dont understand is people who state that they do not know how to properly use their gps or dont trust its accuracy,being anywhere near the vicinity of a green zone.
Ignorance is no excuse.

cheers Scott

[kc]

Just to clarify TFPQ has no problem with GPS. It has a problem with the way they were used in respect of criminal proceedings. Same same with the MPZ maps.

Many of those breached actually had no GPS and in many cases no maps either. There were very occassional fishers and had, in some cases, no idea about the zones. Does that make then criminals? Ignorance is no excuse....but.....let the punishment fit the crime.

If this had been, as it is now, an on the spot fine (a parking ticket) it would never have been an issue.

TFPQ feels it should do whatever it can to have convictions overturned and the authorities have not followed the rules of evidence in respect of the use of GPS. This is their own fault.

KC

[madmix]

I dont think it is a matter of excuse, IE ignorance, user error etc.
In fact I don't think the individuals GPS unit (or lack of) is in question.

The prosecution must provide evidence as to an individuals location
(if they intend to use GPS data, it must be corroborated by some other
means). They then have to show that this individual location is within
the boundaries of a green zone (If the location is 10m or 10km within
the green zone is not relevant)

cheers Mick

[grahams]

It's interesting stuff GPS accuracy etc. I've had a look at my GBRMPA Maps and boundaries are actual Lat and Long. A GPS is just the most effective method of determining your Lat and Long. Transposing onto hydrographic charts is a problem. My AUS charts are still in AGD66 datum so there is a NE SW shift. The GBRMPA charts are on wgs84 and the lat and long are wgs84, so they actually match up. The chartplotters all have wgs84 as their default and most now have the green zones on their charts.

I did a bit of digging and believe the guys the subject of the court decision were in the order of 600metres inside the green zone and within sight of the Cay. I don't have a lot of sympathy for them. The type of offence that's worried me has been a troll line out the back of a cruising Yacht, not likely to catch any fish anyway. The on the spot fine approach is a good change.

I also note most people are quoting 300 odd convictions since the rezoning. I have been told there have been about 110 convictions and about 160 warnings for fishing in Green Zones since the new zoning came in in 2004. It's good to see people trying to get the system right, at the moment its pretty murky.

[Adamy]

I also note most people are quoting 300 odd convictions since the rezoning. I have been told there have been about 110 convictions and about 160 warnings for fishing in Green Zones since the new zoning came in in 2004. It's good to see people trying to get the system right, at the moment its pretty murky.

The figures I have heard quoted are 322 - but the the media release from Mike Horans office said 320, with another 40 in the pipeline. Does anyone have actual figures?

Adam

[kc]

Between July 2004 and October 2006 there have been 322 convictions. All but 2 of these have been given criminal records.

We have a list of all cases, names and outcomes.

KC

[kc]

This has legs again. As at 28th March the DPP has announced it will appeal the decision to a higher court.

The ramifications of this are enormous and as such the case will have a very significant media profile.

With this going to a higher court it will set legal precident. Where the Government had a moral obligation to wipe convictions, if the original judgement is upheld by the appeals court they will then have a legal obligation to wipe convictions and repay all fines.

This is a big deal and no doubt LOTS of moeny and resources will be thrown at this.

We may well be faced with the somewhat absurd situation where the crown, via its maritime safety authority, convict commercial skippers who rely soley on GPS and have an accident and at the same time, convict fishers using soley GPS to determine position.

This is just so typical of the GBRMPA and its standover tactics. It would have been so easy to just admit a procedural error and confirm future GPS breach fixes with some compass or radar bearings...but no...rather than admit they f&^% up they would rather spend money....our taxes...on a high court challenge.

The big issue is, as we see it, the Government is on a hiding to nothing. If the DPP wins the appeal, does that then give anyone convicted of USING GPS as the sole means of fixing a position (and having an accident) grounds to appeal their conviction?

What the law is trying to do here is firstly overide the manufacturers own instructions. to whit :Warning. This device is an aid to navigation only. Not to be used for navigation purposes!!

This whole saga now has a ways to go and will hot up significantly.

Watch this space.

KC