FRCS v Andrew Brown — Judgment

Transcription notice: This text was transcribed from photographs of the signed 12-page judgment for convenient reading online. Formatting has been simplified. If precision is important, the original court document should be consulted.

In the Magistrate’s Court of Fiji at Nadi
Private Prosecution Case No. 009/2025

FRCS
v
Andrew Brown

Judgment

1. The accused was charged as follows:

Charge

Statement of Offence [a]

Contravening the requirement to furnish the last-port clearance: Contrary to section 19(7) of the Customs Act 1986.

Particulars of Offence [b]

Mr Andrew Brown, being the master of sailing yacht Lordship, on or about 9 October 2024 at Denarau in the Western Division, contravened the requirement to furnish last-port clearance as required to do so by a Customs Officer under the provisions of section 19(1)(d) of the Customs Act at the time of clearance.

2. On 20 January 2026, the accused pleaded not guilty to the above charge in the presence of his counsel.

3. The matter proceeded to trial and the Prosecution called two witnesses before closing its case. The accused also gave evidence and called one witness before closing his case.

4. The parties were given time to file written submissions, which the Court has considered and for which it is grateful. The Prosecution filed closing submissions on 25 June 2026 and the Defence filed its submissions on 7 September 2026.

5. This is now the Court’s judgment.

6. As part of the trial, the following documents were tendered and admitted:

Presumption of innocence

7. The right of an accused person to be presumed innocent until proven guilty according to law is a right guaranteed under section 14(2)(a) of the Constitution. Woolmington v DPP [1935] AC 462.

Burden and standard of proof

8. The burden of proof lies with the Prosecution as stipulated in section 57 of the Crimes Act 2009, which states as follows:

57(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.

(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.

9. The standard of proof lies with the Prosecution as stipulated in section 58 of the Crimes Act 2009, which states as follows:

58(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

10. The burden of proving the case against an accused rests fairly and squarely upon the Prosecution and does not shift to the accused. Where the evidence leaves the Court with a reasonable doubt as to guilt, the accused is entitled to the benefit of that doubt.

11. However, in addition, section 167A of the Customs Act states: “In any proceedings under this Act, the burden of proof lies with the defendant in the proceedings.”

Summary of evidence

Prosecution Witness 1 (PW1) — Laisenia Bese Waqalevu

12. PW1 recalled that on 9 October 2024, while on duty at Port Denarau, the sailing yacht Lordship, skippered by the accused, Andrew Brown, arrived for inward clearance. PW1 requested the accused to produce the vessel’s last-port clearance from Tonga. The accused informed him that he did not have the document. PW1 subsequently contacted the Tongan authorities and understood that a clearance had initially been issued to the accused but was later taken back after the accused returned to Tonga following problems with the vessel’s sail. PW1 confirmed that the accused did not furnish any outward or last-port clearance from Tonga. PW1 explained that a last-port clearance is issued by the authorities at the vessel’s previous port and records information including the vessel, its master, passengers and crew, date and time of departure, and intended destination. He maintained that production of the document was required under section 19(1)(d) of the Customs Act. As the accused did not produce it, PW1 prepared an information report and referred the matter for investigation.

13. Under cross-examination, PW1 confirmed that, before Lordship arrived in Fiji, the accused had submitted a C2-C Advance Notification of Arrival form. On 2 October 2024, seven days before his arrival, the accused emailed FRCS advising that he had departed Tonga on 26 September 2024 intending to sail to New Zealand but had experienced damage to the vessel’s rigging after departure. The accused advised that the damage caused the mast to become unstable, that he had returned to the Haʻapai Group and secured the mast with Dyneema rope, and that he intended to divert to Fiji because suitable repair facilities were available there and the passage was downwind. The email and Advance Notification of Arrival were admitted as Defence Exhibits 1 and 2 respectively. PW1 accepted that the accused complied with the advance-notification requirement and did not conceal either his identity or that of the vessel. He further accepted that the accused had originally departed Tonga with the required papers. After encountering the problem with the mast, the accused returned to Tonga, where the authorities took back the clearance and directed him to proceed to Vavaʻu. The accused explained to PW1 that he considered it unsafe to sail to Vavaʻu because that course required sailing upwind with the damaged mast. PW1 personally boarded Lordship after its arrival in Fiji and observed the Dyneema rope being used to support the mast. The accused explained the damage to the forestay and informed PW1 that he had diverted to Fiji for repairs. PW1 accepted that the accused was seeking a safe harbour to repair the vessel and that he knew of the vessel’s condition when preparing his report. PW1 was referred to the words “the clearance, if any” in section 19(1)(d). He accepted that the provision contemplated circumstances in which a vessel might arrive without clearance papers, although he maintained that an outward clearance from the previous country was ordinarily required. He was also referred to section 14 of the Customs Act concerning a vessel compelled by accident, stress of weather or other unavoidable cause to deviate from ordinary arrival procedures.

14. In re-examination, PW1 distinguished an Advance Notification of Arrival from a last-port clearance. He also confirmed that Vavaʻu was geographically closer to the accused’s location than Fiji and that the Tongan authorities had directed the accused to proceed there.

Prosecution Witness 2 (PW2) — Virendra Reddy

15. PW2, Virendra Reddy, was a Senior Customs Officer with approximately 14 years’ experience, principally in investigations. He investigated the accused’s case from 11 October 2024, interviewed the accused, communicated with the Tongan authorities and prepared a report for FRCS management. PW2 stated that vessels travelling between countries ordinarily require outward clearance from the country of departure and inward clearance upon arrival. His investigation concerned the accused’s arrival in Fiji without producing a last-port clearance from Tonga. He tendered the accused’s cautioned record of interview dated 11 October 2024, which was admitted without objection as Prosecution Exhibit 1.

16. Under cross-examination, PW2 was referred to the accused’s answers in the record of interview. The accused stated that he departed Vavaʻu, Tonga, on 26 September 2024 and thereafter discovered damage to the forestay cable supporting the mast. He returned to the Haʻapai Group, anchored the vessel, inspected the damage and secured the mast with Dyneema rope. He later approached Customs at Pangai and sought re-entry. According to his account, the Tongan authorities took his clearance papers and directed him to proceed to Vavaʻu. PW2 accepted that the Tongan authorities had initially issued the accused with clearance papers showing New Zealand as his intended destination. He also accepted that the accused had told him that he spent approximately five days attempting to resolve the matter in Tonga before deciding to travel to Fiji for repairs. The accused explained that he considered it unsafe to sail to Vavaʻu because the passage was upwind and would place additional pressure upon the damaged mast, whereas the passage towards Fiji was downwind. PW2 accepted that he had no sailing experience. He stated that he had been informed that repair facilities were available in Vavaʻu, but no admissible independent evidence supporting that information was produced before the Court. PW2 also accepted that the accused had not been challenged during the interview on the basis that the mast was not damaged or that he had travelled to Fiji for some purpose other than obtaining repairs. PW2 confirmed that the accused did not physically possess the Tongan clearance when he entered Fiji. He accepted that it was impossible for the accused to produce a document that he did not possess. When referred to the words “clearance, if any” in section 19(1)(d), he accepted that the wording appeared to recognise circumstances in which a person might not possess clearance papers. PW2 also accepted that the accused arrived at a designated port in Fiji and had submitted an Advance Notification of Arrival before arriving. He was aware that the accused had advised FRCS that he had originally intended to travel from Tonga to New Zealand but was diverting to Fiji after experiencing problems with the vessel.

Defence Witness 1 (DW1) — Andrew Brown

17. The accused, Andrew Brown, gave evidence on oath. He stated that he was the owner and master of Lordship, a 38-foot monohull sailing vessel. He had sailed more than 20,000 nautical miles and had visited approximately 25 countries aboard the vessel. The accused testified that he entered Tonga from American Samoa on 27 August 2024 and departed Vavaʻu on 26 September 2024 intending to sail to New Zealand. He stated that he completed the required Immigration and Customs procedures before departure and was issued outward clearance. Relevant passport and vessel documents were admitted as Defence Exhibits 3(a) to 3(e). On the morning after departure, the accused discovered damage to the vessel’s forestay. He explained that the forestay was one of the principal cables supporting the mast and that several of its stainless-steel strands had broken. He immediately reduced sail and proceeded towards the nearest safe anchorage in the Haʻapai Group. After anchoring, he climbed the mast, inspected the damage and secured it temporarily with Dyneema rope. A photograph of the damaged forestay was admitted as Defence Exhibit 4. The accused stated that the temporary repair did not make the vessel safe for ordinary sailing. He investigated whether the forestay could be professionally repaired in Tonga but was informed that the necessary expertise and equipment were unavailable. On 1 October 2024, he contacted Westside Rigging in Fiji and was advised that the necessary materials and facilities were available. That email was admitted as Defence Exhibit 5. The accused testified that he attended the Customs office at Pangai and explained that the vessel had been damaged and that he required re-entry. He stated that a Customs Officer took the outward-clearance document previously issued to him and wrote “cancelled” across it. He was directed to return to Vavaʻu. The accused maintained that he considered the journey to Vavaʻu unsafe because it required sailing upwind, thereby placing further pressure upon the damaged forestay. He also stated that he had already established that the necessary repair could not be carried out there. The accused stated that he made repeated attempts over several days to resolve the matter with the Tongan authorities. On 1 October 2024, he also emailed the Tongan High Commission seeking assistance. That email was admitted as Defence Exhibit 6. When those attempts were unsuccessful, he decided to sail to Fiji, where the vessel could be repaired. Before departing for Fiji, the accused completed the Advance Notification of Arrival and emailed FRCS, Immigration and Biosecurity, explaining the damage to the vessel and his intention to enter Fiji for repairs before continuing to New Zealand. He sailed with reduced sail and arrived at Port Denarau on 9 October 2024. Upon arrival, the accused informed PW1 that he did not have the Tongan outward-clearance document because it had been retained by the Tongan authorities. He explained the damage to the forestay, showed PW1 the temporary Dyneema support and informed him that he intended to repair the vessel before continuing to New Zealand.

18. Under cross-examination, the accused accepted that Vavaʻu was geographically closer than Fiji and that the Tongan authorities had directed him to proceed there. He also accepted that he entered Fiji without physically possessing the last-port clearance and that he knew Fiji Customs would ordinarily request that document. He maintained, however, that sailing to Vavaʻu would have endangered his life because it required an upwind passage with the damaged forestay. The accused maintained that the absence of the clearance was beyond his control because it had been retained by the Tongan authorities after he had originally cleared out of Tonga. He relied upon the words “clearance, if any” in section 19(1)(d) and upon the emergency created by the structural damage to the vessel.

Defence Witness 2 (DW2) — Sam Price

19. DW2, Sam Price, was a marine rigger with approximately 18 years’ experience repairing yacht masts, standing rigging and related components. He also had extensive sailing experience, including approximately 20 years’ involvement in yachting and 18 Sydney to Hobart Yacht Races. DW2 explained that a forestay is a structural component supporting the mast. If it fails, the mast may fall, damage the vessel and potentially cause it to sink. Where a forestay is damaged, sailing upwind places greater pressure upon the compromised rigging. The safer course is generally to reduce that pressure and travel away from the wind. DW2 personally inspected Lordship in Fiji and found that its forestay was broken. He described the damage as structural and stated that the vessel could not safely continue sailing in that condition. The forestay required removal and replacement using specialised equipment, including a hydraulic press. He subsequently carried out the repair. DW2 stated that facilities in Tonga were limited and that, to his knowledge, there were no yacht riggers available there capable of carrying out the necessary repair. He considered that the vessel could not safely sail approximately 100 nautical miles upwind with the forestay in its damaged condition.

20. Under cross-examination, DW2 accepted that travelling a long distance with a damaged mast was generally unsafe. He explained, however, that distance alone did not determine which course was safer. Sailing towards Vavaʻu required an upwind passage, whereas travelling towards Fiji involved sailing downwind. In his opinion, travelling downwind was the safer course for a vessel with this type of damage. He confirmed that a master confronted with such damage should seek assistance at the nearest safe location.

Elements of the offence/issues for determination

21. Having regard to the wording of sections 19(1)(d) and 19(7), the matters requiring determination are:

1. whether the accused was the master of the sailing yacht Lordship;
2. whether a proper Customs Officer required him to furnish the vessel’s clearance from the place from which the vessel arrived;
3. whether there was a clearance capable of being furnished within the words “the clearance, if any” in section 19(1)(d); and
4. whether the accused failed to furnish that clearance and thereby contravened section 19(1)(d).

22. If those elements are otherwise established, a further issue is whether the accused’s conduct is excused by the defence of sudden or extraordinary emergency under section 41 of the Crimes Act 2009.

23. Section 19(1)(d) expressly provides that the master shall, if required by the proper officer, furnish at the relevant time “the clearance, if any” of the ship from the place from which it arrived. Section 19(7) makes a contravention of subsection (1) an offence. This wording is also reflected in the current published Customs Act.

Submissions

Prosecution submissions

24. The Prosecution submits that, pursuant to section 167A of the Customs Act, the burden of proof lies upon the Defendant in these proceedings. It is noted that this matter represents the first prosecution initiated by Fiji Customs before the Court. Previous cases of a similar nature were dealt with under section 155 of the Customs Act, wherein the master of the vessel pleaded guilty and paid the prescribed fine. In the present case, the Prosecution asserts that Customs officials in Tonga did not issue clearance to the yacht S/Y Lordship. Notwithstanding this, the accused, being the master of the yacht, sailed to Fiji without permission from the Tongan authorities and was therefore fully aware of the breach. The Prosecution emphasises that the accused chose to sail to Fiji, a greater distance, rather than proceeding to Vavaʻu, which was both shorter and safer. The broken mast, it is submitted, bears no relevance to the requirement of last-port clearance. The accused was under a clear obligation to obtain clearance from the Tongan officials prior to departure.

25. The Prosecution further submits that Fiji Customs treats such breaches with utmost seriousness, particularly in light of the increasing incidence of illegal drug importation into the country. Reliance is also placed upon section 172 of the Customs Act, which provides that:

If any resident magistrate hears and determines any prosecution for any offence under the customs laws, then, notwithstanding anything contained in any other Act, he shall have jurisdiction to impose any fine or any sentence of imprisonment which may be imposed under the customs laws on any person convicted of the offence.

Defence submissions

26. The Defence submits that the elements of the offence have not been established beyond a reasonable doubt. The accused was physically unable to produce a document that had been unlawfully confiscated by Tongan Customs authorities. An inability to produce a document does not constitute a contravention of a statutory requirement within the meaning of the Customs Act. His arrival in Fiji was necessitated by a genuine maritime emergency that placed both his vessel and his life at serious risk. The common-law defence of necessity applies to these facts. Fiji, being a State party to the United Nations Convention on the Law of the Sea (“UNCLOS”), is bound by the customary international law right of a vessel in distress to seek safe harbour, in accordance with Article 18(2). The prosecution of a mariner who exercised that right is contrary to Fiji’s binding international-law obligations.

The Defence highlights that Mr Brown gave advance notification of his arrival to the Fiji Revenue and Customs Service (“FRCS”), Fiji Immigration, the Border Health Protection Unit, and the Ministry of Health on 2 October 2024, seven days prior to arrival, fully disclosing his circumstances. He was transparent, cooperative and honest throughout. The conduct of FRCS officers towards Mr Brown was improper. The Defence therefore submits that the accused should be found not guilty.

The Defence further disputes the Prosecution’s submission that the burden of proof lies with the Defendant. This is a criminal trial, and the Prosecution bears both the legal and evidential burden of proving each element of the offence charged beyond a reasonable doubt. This right is enshrined in section 14(2)(a) of the Fiji Constitution. Section 167 of the Customs Act does not refer to the elements of any offence, the presumption of innocence, the standard of proof, or its interaction with common-law defences. Section 167A does not relieve the Prosecution of its burden to prove the elements of the offence it has charged. The Prosecution has not cited any authority in support of its submission.

The Defence submits that, even if section 167A places some burden upon a Defendant in respect of a particular matter, it does not specify the standard by which that burden is to be discharged. Where a statute imposes a burden on a Defendant in criminal proceedings without specifying the standard, the applicable standard is the civil standard — the balance of probabilities — and not proof beyond reasonable doubt. There is nothing in section 167A requiring Mr Brown to prove his defence or disprove the Prosecution’s case to the criminal standard. The Defence has raised necessity, and the burden lies with the Prosecution to negate it beyond reasonable doubt. Even if the burden did rest upon the accused, the Defence submits that it has been amply discharged on the evidence, which was unchallenged, including Officer Waqalevu’s admission of damage to the forestay, the circumstances of the diversion, Fiji’s international obligations, corroborating expert evidence, and the documentary record.

The Defence also draws attention to section 19(1)(d) of the Customs Act, which requires a master, if required by the proper officer, to furnish “the clearance, if any, of the aircraft or ship from the place from which the aircraft or ship arrived.” The qualifying words “if any” are significant. They indicate that the obligation is not absolute, but conditional upon the clearance being available. Where clearance was validly obtained but subsequently confiscated or cancelled by the unlawful act of a third party, the master no longer has clearance “if any” to furnish, through no fault of his own.

The Defence invites the Court to apply the maxim lex non cogit ad impossibilia — the law does not compel the impossible. The accused’s evidence, corroborated by PW1, confirmed that his outward clearance from Tonga had been cancelled and retained by Tongan officials who mistakenly believed he had overstayed. On that basis, no contravention within the meaning of section 19(1)(d) or section 19(7) is established. Mr Brown immediately and fully disclosed to PW1 why he did not have clearance and had, seven days prior, given FRCS complete advance written notice of the circumstances. His position was consistent and made in good faith.

The Defence submits that section 14 of the Customs Act is also relevant. Although S/Y Lordship ultimately berthed at Denarau, a designated port, her voyage was an emergency diversion caused by structural damage to the forestay. When repair proved impossible in Tonga, she came to Fiji. Section 14(2)(a) requires the master in such circumstances to report without delay, which Mr Brown did, producing relevant documents upon arrival. His arrival without clearance was excused by the Act.

The Defence addressed the Court on UNCLOS, noting that Fiji is bound by Article 18(2). Both PW1 and PW2 admitted in cross-examination that Fiji is obliged to afford safe passage to vessels in distress, and further admitted that this obligation was not applied to Mr Brown, nor was the safe-harbour context recorded in the report to the investigating officer.

The Defence also highlighted Fiji’s obligations under the International Convention for the Safety of Life at Sea (“SOLAS”), which prioritises the safety of life and vessels in distress over administrative considerations. PW1 agreed that Fiji’s failure to afford S/Y Lordship safe harbour contravened its obligations under SOLAS.

The Defence submits that the common-law defence of necessity is established. The accused faced imminent peril of such gravity that a reasonable person would have felt compelled to act. There was no reasonable legal alternative, and the harm avoided was not disproportionate to the harm caused. Reliance is placed on Perka v The Queen [1984] 2 SCR 232.

In response to the Prosecution’s submission that Mr Brown sailed to Fiji, the Defence relies on expert evidence from Mr Price, who testified that a vessel with a damaged mast or forestay cannot safely travel a greater distance. He stated that an upwind course to Vavaʻu would have placed dangerous strain on the compromised forestay, whereas Fiji was accessible by a downwind passage. His evidence was unchallenged. The Prosecution did not address the upwind/downwind issue.

The Defence also refers to section 11 of the Customs Act, which requires a master to notify the proper officer not less than two days before arrival. Mr Brown complied, giving notification seven days prior with all relevant documents. He concealed nothing.

Finally, the Defence submits that the conduct of PW1 and PW2, including the unlawful attempt to compound the offence, undermines the reliability and integrity of the Prosecution’s case. Mr Brown’s evidence was corroborated, supported by documentary records, and withstood cross-examination. The Defence therefore submits that the accused should be found not guilty and the charges dismissed.

27. The Prosecution also referred to the seriousness with which Customs treats border offences, particularly in the context of illicit drug importation. Those considerations may explain the importance of Customs clearance requirements generally, but they do not assist in determining whether the particular elements of the offence charged against this accused have been proved.

Analysis

Section 167A — burden of proof

28. Section 167A of the Customs Act provides:

In any proceedings under this Act, the burden of proof lies with the defendant in the proceedings.

The provision was inserted in 2017.

Section 167A must not, however, be considered in isolation. Section 14(2)(a) of the Constitution guarantees an accused person’s right to be presumed innocent until proven guilty according to law. Sections 57 and 58 of the Crimes Act provide the ordinary criminal-law position that the Prosecution bears the legal burden of proving every element relevant to guilt and must discharge that burden beyond reasonable doubt.

The Criminal Procedure Act does not displace a specific procedural or evidential provision contained in another enactment. Section 3 provides that the CPA does not derogate from other laws dealing with criminal procedure and is to be read subject to specific statutory provisions concerning, among other matters, the giving and admissibility of evidence. Section 5(1) further provides that an offence created by another law is tried by the court vested with jurisdiction under that law.

Section 167A therefore cannot simply be ignored. Equally, it should not be construed as relieving the Prosecution of establishing the factual foundation of the offence and requiring the accused to prove his innocence.

Of particular assistance is the Fiji Court of Appeal decision in Kritesh Kumar v State, Criminal Appeal AAU 132 of 2018, judgment delivered 27 July 2023. In considering another statutory reverse-onus provision, the Court examined the distinction between a legal and evidential burden and its relationship with the constitutional presumption of innocence. The Court ultimately read the reverse burden there as an evidential burden so as to preserve consistency with section 14(2)(a) of the Constitution. The Court of Appeal explained that an evidential burden requires the accused to point to evidence suggesting a reasonable possibility that the relevant matter exists. Once such an issue is properly raised, the Prosecution must meet it and satisfy the Court beyond reasonable doubt.

In the present case, any evidential burden upon the accused has plainly been discharged. He did not merely assert that the document was unavailable. Evidence was given concerning his original clearance from Tonga, the subsequent damage to the forestay, his return to the Haʻapai Group, the retention or cancellation of the clearance by the Tongan authorities, his attempts to secure repairs, the advance notification to Fiji and the condition of the vessel. Material parts of that account were supported by PW1, the documentary exhibits and the independent evidence of DW2.

Accordingly, once those matters became genuine issues upon the evidence, the ultimate question remains whether the Prosecution evidence establishes guilt beyond reasonable doubt.

I do not accept the Defence submission that any burden imposed by section 167A must necessarily be discharged on the balance of probabilities. For the reasons already given, I consider section 167A to impose an evidential rather than persuasive burden in the circumstances of this case.

Section 14 of the Customs Act

29. Section 14 does not itself determine the charge. In particular, section 14(2) concerns an aircraft or ship compelled by accident, stress of weather or other unavoidable cause to call at a place other than an airport or port. Lordship ultimately arrived at Port Denarau. The accused therefore cannot simply rely upon section 14(2) as a statutory exemption from section 19(1)(d).

Section 14 is nevertheless relevant contextually. It demonstrates that the Customs Act itself recognises that accident, stress of weather and other unavoidable causes may compel a vessel to deviate from the ordinary procedure on arrival. In such circumstances, the Act focuses upon prompt reporting, production of available documents and compliance with the directions of the proper officer.

Maritime emergency

30. I accept that the damage to Lordship was genuine. The accused’s account was not supported merely by his own assertion. PW1 saw the vessel and the temporary Dyneema support and accepted that the accused had diverted because of the mast damage. More importantly, DW2 Sam Price, an experienced marine rigger and sailor, subsequently inspected and repaired the forestay.

DW2 described the damage as structural and stated that the vessel could not safely continue sailing in that condition. A complete forestay failure could cause the mast to fall, damage the hull and potentially cause the vessel to sink. He also explained that travelling upwind placed substantially greater stress upon the damaged forestay.

The Prosecution emphasises that Vavaʻu was geographically closer than Fiji. Distance alone, however, does not answer the safety issue. DW2 specifically addressed that proposition in cross-examination. He explained that Vavaʻu required an upwind passage whereas Fiji involved travelling downwind, and that the safer course for a vessel with this damage was to travel downwind. His evidence on this material maritime issue was not displaced by competing expert evidence.

PW2’s contrary view must be considered in that context. He accepted that he had no sailing experience and had never sailed a vessel. He therefore had no comparable expertise upon which to contradict DW2 concerning the stresses placed upon a damaged forestay by an upwind passage.

Section 41 Crimes Act — sudden or extraordinary emergency

31. The Defence has referred to the common-law doctrine of necessity and Perka v The Queen [1984] 2 SCR 232. In Fiji, however, the matter should first be considered under section 41 of the Crimes Act 2009, which expressly deals with conduct undertaken in response to a sudden or extraordinary emergency.

Section 41 provides, in substance, that a person is not criminally responsible where the person reasonably believes that circumstances of sudden or extraordinary emergency exist, that committing the offence is the only reasonable way of dealing with the emergency, and that the conduct is a reasonable response to the emergency.

The evidence sufficiently raises each of those matters for the purposes of section 41. The structural failure developed after the accused had departed Tonga with outward clearance; he reduced sail, sought a safe anchorage, attempted to secure the mast, sought assistance in Tonga, investigated repair facilities and contacted a Fiji rigger before undertaking the voyage to Fiji. The Advance Notification was then sent before arrival.

The issue is not whether travelling with the damaged vessel was entirely without risk. The question is whether the accused reasonably believed that the course adopted was the only reasonable means of dealing with the emergency and whether his response was reasonable. DW2’s evidence concerning the danger of sailing upwind materially supports that belief. Having regard to the whole of that evidence, I am not satisfied beyond reasonable doubt that the emergency defence has been negatived.

UNCLOS

32. The Defence also relies upon Articles 17, 18 and 19 of UNCLOS. Article 18(2) is relevant, but its effect should not be overstated. It recognises that passage ordinarily must be continuous and expeditious but expressly permits stopping and anchoring where incidental to ordinary navigation or rendered necessary by force majeure or distress, or for rendering assistance to persons, ships or aircraft in danger or distress.

Article 18(2) therefore provides important legal context for assessing the accused’s explanation that his deviation and stopping arose from distress. It is consistent with the proposition that maritime law recognises genuine distress as capable of justifying departure from the ordinary requirement of continuous passage. The UNCLOS material supplied to the Court itself distinguishes between stopping or anchoring in territorial waters and an unrestricted entitlement to enter a State’s internal ports.

I would therefore not find that Article 18(2), by itself, exempted the accused from section 19 of the Customs Act. Nor is it necessary to decide that Fiji was legally obliged under Article 18(2) to grant Lordship unconditional entry into Port Denarau. Its proper significance in this proceeding is that it supports recognition of distress and force majeure in maritime navigation and assists in evaluating whether the accused’s conduct and explanation were reasonable.

SOLAS

33. Similar caution is required concerning SOLAS. The material provided refers to the master’s overriding authority under Chapter V Regulation 34-1 and the obligation to assist persons in distress under Regulation 33. Those provisions reinforce the importance attached by international maritime law to the protection of life and safety at sea and support the reasonableness of a master’s taking necessary safety measures when confronted with a genuine maritime danger. They are therefore relevant background when assessing the accused’s explanation and the evidence of DW2.

I would not, however, hold on the material presently before the Court that SOLAS creates a blanket immunity from domestic Customs requirements for a vessel entering port in distress. The question ultimately before this Court remains whether the offence created by section 19(7), read with section 19(1)(d), has been established and whether the accused has raised an applicable statutory emergency defence. Accordingly, while SOLAS provides relevant context concerning the importance of safety at sea, I do not consider it to create an automatic exemption from the requirements of section 19 of the Customs Act. Its relevance is principally to the assessment of the reasonableness of the accused’s conduct in the circumstances confronting him.

Section 155 — power of Comptroller

34. Section 155 does not determine whether the accused committed the offence. It establishes an alternative mechanism by which the Comptroller may compound an offence where, importantly, the person admits in writing that he or she committed the offence and requests the Comptroller to deal with it under that section.

The accused did not make the required admission and maintained that he had committed no offence. The fact that other yacht operators may have admitted offences and settled them under section 155 does not establish the accused’s guilt in the present proceeding. Likewise, his refusal to compound the allegation cannot be treated as evidence of guilt.

I would therefore give the evidence concerning the proposed $10,000–$12,000 settlement and the previous settlements no weight in determining the elements of the offence. Those matters are collateral to the central question whether the charge before this Court has been proved.

35. I accept PW1’s evidence that the accused did not furnish a last-port clearance when requested. I also accept his evidence concerning the advance notification and what the accused told him about the damaged mast. His evidence materially supports the Defence account concerning the reason for the diversion.

36. I attach limited weight to PW2’s opinion that the accused could simply have travelled to Vavaʻu. PW2 possessed substantial Customs investigative experience but accepted that he had no sailing experience. His information that repairs were available in Vavaʻu was not supported by admissible independent evidence before the Court. By contrast, DW2 possessed extensive practical sailing and marine-rigging experience and personally inspected and repaired the damaged forestay.

37. I accept DW2 as a reliable witness on the technical matters within his expertise. His evidence independently confirms that the forestay had suffered structural damage, that continued sailing was unsafe and that an upwind passage placed greater stress upon the damaged rigging.

38. The accused’s evidence concerning the central circumstances of the voyage was materially consistent with the account he provided before entering Fiji, his explanation upon arrival, his record of interview and the physical condition subsequently observed and repaired. I therefore accept his evidence concerning the material circumstances of the emergency and the reason for the absence of the Tongan clearance.

Element 1 — accused was master of Lordship

39. This element is not in dispute. PW1 identified the accused as the master of Lordship. The accused himself accepted that he owned, operated and skippered the vessel. I find this element proved beyond reasonable doubt.

Element 2 — requirement by a proper officer

40. PW1 was the Customs Officer conducting the inward clearance at Port Denarau. His evidence was that he requested the accused to produce the vessel’s last-port clearance. The accused does not materially dispute that Customs requested the document. Indeed, his case is that he immediately explained why he could not produce it.

I therefore find beyond reasonable doubt that PW1 was acting as the proper officer and that the accused was required to furnish the relevant clearance for the purposes of section 19(1)(d).

Element 3 — “the clearance, if any”

41. This is the principal issue arising from the statutory wording. Section 19(1)(d) does not simply state that every master arriving in Fiji must produce a last-port clearance. Parliament qualified the obligation by the words “the clearance, if any”.

The Prosecution proved that the accused did not physically possess a Tongan clearance when he arrived in Fiji. That fact is admitted. It does not, however, by itself resolve whether he contravened section 19(1)(d). The Court must determine why the document was absent and whether, in the circumstances proved, there remained a clearance capable of being furnished.

There is significant evidence supporting the accused’s explanation. PW1 accepted that the accused had originally departed Tonga with clearance papers, encountered difficulty with the vessel after departure, returned because of the mast problem, and that the Tongan authorities thereafter retained or took back the clearance. PW2 also accepted that the accused did not physically possess the Tongan clearance when he entered Fiji. The legal effect of the words “the clearance, if any” is, however, a matter for the Court.

Of particular significance, PW2 accepted in cross-examination that it was impossible for the accused physically to produce a document he did not possess and accepted that the words “clearance, if any” appeared to recognise circumstances where a person might not possess clearance papers.

I therefore do not accept the Prosecution submission that the mere fact that the accused arrived without physically producing the document necessarily establishes the offence. That approach gives insufficient effect to the qualifying words “if any”. The Court must give meaning to the whole of the provision.

Element 4 — contravention of section 19(1)(d)

42. The accused did not conceal the absence of the document. Seven days before arrival, he sent the Advance Notification of Arrival and notified FRCS of the circumstances of his diversion. PW1 accepted that the accused complied with the advance-notification requirement, disclosed his identity and the identity of the vessel, explained the damaged rigging and informed Customs that he was diverting to Fiji for repairs.

Upon arrival, the accused again immediately told PW1 that he did not have the Tongan clearance and explained why. This conduct is relevant not because prior notification substitutes for a clearance required under section 19(1)(d), but because it supports the reliability and consistency of his explanation for its absence.

I accordingly distinguish between failure to furnish an existing clearance which a master is capable of furnishing, and the inability to furnish a clearance which has been retained or cancelled by the authorities of the previous State following an emergency return. On the evidence before me, the Prosecution has not established that the accused possessed or controlled a clearance capable of being furnished to PW1 when required.

Accordingly, I am not satisfied beyond reasonable doubt that the accused contravened section 19(1)(d). The Prosecution has not established that, when required by PW1, there existed a clearance within the meaning of “the clearance, if any” which remained in the accused’s possession or control and which he was capable of furnishing.

Conclusion

43. Having considered the evidence as a whole, I am not satisfied beyond reasonable doubt that the accused contravened section 19(1)(d) of the Customs Act. Although he did not produce a last-port clearance upon arrival in Fiji, the evidence establishes that he had initially departed Tonga with clearance, that Lordship thereafter sustained structural damage to its forestay, and that the Tongan authorities subsequently retained or cancelled the clearance following his return to Tonga.

44. In those circumstances, the Prosecution has not established that, when required by PW1, there remained a clearance within the meaning of the words “the clearance, if any” which was in the accused’s possession or control and capable of being furnished. The absence of the document, without more, does not establish a contravention of section 19(1)(d).

45. In any event, I am satisfied that the evidence sufficiently raises the defence of sudden or extraordinary emergency under section 41 of the Crimes Act 2009. In particular, DW2 independently confirmed the structural nature of the damage to the forestay and the increased danger associated with an upwind passage. Having considered the evidence as a whole, I am not satisfied that the Prosecution has negatived that defence beyond reasonable doubt.

46. Accordingly, the Prosecution has failed to prove the charge under section 19(7), read with section 19(1)(d) of the Customs Act, beyond reasonable doubt.

47. Andrew Brown is therefore found not guilty and is acquitted.

48. The parties are advised of their applicable right of appeal. Any appeal is to be filed within the prescribed period of 28 days.

28 days to appeal.

Talei Kean
Resident Magistrate

29 September 2026, Nadi MC