IN PROSECUTING FISHERIES OFFENSES THE EVIDENTIAL VALUE OF OBSERVERS
This paper discusses the use of Observers for enforcement and prosecution, the difficulties with using Observers and limitation, as well as the other methods of enforcement such as Vessel Monitoring Systems.
A law that is not enforced is like a shark without teeth: it looks effective but does not deter. If fisheries laws cannot be enforced then they are worthless. Pre-meditated violation of fisheries regulations by fishermen is based on assumptions regarding the financial reward, the probability of detection and the anticipated likelihood and extent of possible sanction. Enforcement becomes difficult, if not impossible, without effective surveillance of what is going on and where. The observer programs form part of the effective control and surveillance of fishing.
The use of the observer programs can have a dual role of ensuring compliance with fisheries laws, but can also be used to provide evidence in support of any prosecution for fisheries violations. The evidence collected by the observer is only useful to a prosecution if the Court admits it into evidence. It is this process which has a number of hurdles for the use of observers as prosecution witnesses.
At present there are few studies that have evaluated the benefits of using observers in the dual role of enforcement and scientific observation. Observer records and information may be required as evidence in the prosecution of a violation by a vessel, captain or company. Such evidence will be more admissible if the observer program has developed standardized formats, methods and protocols for recording and handling compliance-related issues. Observers should be suitably trained in these protocols and also in the appropriate manner to present such information in any court proceeding.
Katherine has been a practicing lawyer for over 15 years, with extensive legal and training experience. She has over 20 years experience in the legal profession either as a clerk, solicitor or barrister across all jurisdictions. She has extensive courtroom experience and demonstrated knowledge of evidence, and practice and procedure within different jurisdictions. She has recently completed her Masters of Maritime Law through the Law Faculty at Wollongong University and will commence her PhD in the area of evidence and international fisheries prosecutions.
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