Courts reject Keith Ronald Nye's application for costs five years after illegal fishing arrest

In 2019, Mogo man Keith Ronald Nye was charged with trafficking an indictable species of fish, possessing more than possession limit and shucking or possessing shucked abalone - not a commercial fisher after he was found with 91 shucked abalone in an incident on August 23, 2017 near Snake Bay.

The NSW Department of Industry (DPI) withdrew the charges against Mr Nye on November 7, 2022 in Batemans Bay Local Court.

Mr Nye, 66, faced Batemans Bay Local Court again on February 6 seeking remuneration for legal proceedings.

Magistrate Doug Dick said the court had to be satisfied the process of investigation by the prosecutor was just and reasonable. He said costs could be awarded if a prosecutor unreasonably pursues legal proceedings.

"If there was no prospect of success, it is unreasonable to commence proceedings," he said.

Mr Nye's lawyer Wayne Boom told the court the DPI's legal pursuit of Mr Nye was unreasonable because they never considered the native title defence.

He said the DPI knew Mr Nye would be using the native title defence as his only legal defence from as early as January 15, 2020, and chose to continue legal proceedings regardless.

"The prosecution well knew it was a native title defence," he said.

"They had five years and three months to consider this."

Mr Boom said five years and three months - the time between when the alleged offence occurred and when charges were withdrawn - was too long to prosecute someone for such an incident.

He said the charges were withdrawn because the DPI had realised the strength of Mr Nye's native title defence.

"We aren't told why [the charges] were withdrawn," he said.

"It was not withdrawn because they didn't have 91 shucked abalone.

"It was withdrawn because of the native title defence and that was the defence at all times, and they knew."

Mr Boom said there was nothing in the law which permitted the court to order compensation for the 91 seized abalone, and that the product would be useless five years later. He applied for more than $13,000 in legal costs.

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The DPI prosecutor blamed the drawn out legal proceedings on Mr Nye's decision to delay the matter until after court proceedings relating to a separate issue were complete.

He said the DPI did not know Mr Nye would be using the native title defence until Mr Boom shared it with the court on the day.

Magistrate Doug Dick said while the drawn out proceedings were "not an efficient use of time" and were "quite frustrating" there was no breach of the law in the timeline.

"I can find no flaw in the process that has been before the court," he said.

Mr Dick refused the application for costs.