PATRICK JOHN SABATINO (appellant) v MATTHEW JOSEPH SLATCHER
(respondent)
FILE NO:
084/2019
085/2019
DIVISION:
Appellate
PROCEEDING:
Appeals pursuant to s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:
Magistrates Court at Mackay
DELIVERED ON:
12 March 2021
DELIVERED AT:
Mackay
HEARING DATE:
1 March 2021
JUDGE:
Smith DCJA
ORDER:
1. Each appeal is dismissed.
2. The orders made in the Magistrates Court at Mackay are confirmed.
CATCHWORDS:
ABORIGINALS- NATIVE TITLE TO LAND- Rights and Interests under traditional laws and customs- whether section 211 of the Native Title Act 2003 (Cth) applied- whether Native Title rights arose under than under the Act
CRIMINAL LAW – DEFENCE – HONEST CLAIM OF RIGHT – TRADITIONAL ABORIGINAL HUNTING PRACTICES – Whether defence under s 211 of the Native Title Act 2003 (Cth) available- whether defence of honest claim of right was available at trial- whether defence disproved by the prosecution
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Ahwang v Slatcher
Sign in free to access the full text
Details
AGLC
Ahwang v Slatcher [2021] QDC 40
Case
[2021] QDC 40
Decision Date
CaseChat Overview and Summary
In the case of Ahwang v Slatcher, the appellants, both Aboriginal men, were charged with taking a green sea turtle without a permit. The appellants claimed they were exercising their traditional hunting rights, which they believed were recognised under Australian law. The prosecution argued that the appellants did not have the necessary permits and that their claims of traditional hunting rights were not sufficient to constitute a defence under the relevant legislation. The case was heard in the Queensland Court of Appeal, where the appellants sought to overturn their convictions on the basis that their defence of honest claim of right should have been accepted. The central legal issues in this case were whether the defence of honest claim of right was available under the circumstances and whether it was properly disproven by the prosecution. The appellants argued that their traditional hunting practices provided a valid defence, independent of specific statutory provisions, as they believed their actions were lawful under native title rights. The prosecution, on the other hand, contended that the appellants' belief in their rights was not legally recognised and that they did not hold the necessary permits, rendering their defence insufficient. The Court of Appeal found that the appellants' convictions were properly upheld. The court held that the appellants did not have a legally recognised right to hunt without a permit, and their belief in their traditional rights did not satisfy the requirements of the honest claim of right defence. The court relied on previous decisions that established that such a defence requires a belief in a right recognised by law, which the appellants' evidence did not demonstrate. Consequently, the appeals were dismissed, and the original convictions were confirmed.
Orders
Orders of the court
1. Each appeal is dismissed.
2. The orders made in the Magistrates Court at Mackay are confirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The prosecution submitted that the issue in the case was whether there was any honest claim of right. The prosecution relied on the decision of Heffernan v Ibell.[40] It was submitted no defence was raised under s 211 of the Native Title Act. It was submitted that s 22 of the Criminal Code did not apply because there was no authorisation. It was submitted each of the elements had been proved beyond reasonable doubt, s 22 had not been raised and in any event it had been negatived and the appellants should be convicted.[40][2016] QDC 157.Decision The Magistrate in his decision noted that both appellants admitted in cross-examination that they were hunting in the area identified on the map. Both defendants made admissions they did not hold the necessary permit. With respect to s 22 of the Criminal Code and s 211 of the Native Title Act, the Magistrate relied on Heffernan v Ibell.[41] The Magistrate found that Exhibit 7 and 8 showed the defendants didn’t hold native title rights and because of their bloodlines there was no defence under s 211 of the Native Title Act. Any mistake was a mistake of law and was not a mistake of fact and in those circumstances s 22 did not apply. The Magistrate found each of the appellants guilty.[41][2016] QDC 157.Appellants’ submissions A preliminary point was taken by the appellants. It is submitted that the bringing of the complaint was out of time. It is submitted that on the evidence it may be inferred that Mr Slatcher that complainant was well aware of an offence prior to the commencement of one year before the issue of the complaint. The appellants submit they were hunting in accordance with traditional methods of hunting. In his evidence, the appellant Mr Ahwang said he believed he hunted under a Native Title right since the Mabo case in 1992. It is submitted relying on Akiba v The Commonwealth (No 2)[42] that there are native title rights quite independent of s 211 of the Native Title Act which the appellants said they were exercising on the day in question. It is therefore submitted that s 22 of the Criminal Code was not disproved. This is because the appellants had a legal belief of a right to take the turtle for ceremonial purposes.[42][2010] FCA 673; 204 FCR 1.Respondent’s submissions As to the preliminary point the respondent submits that the onus is on the appellants to disprove the averment and they have not done so. The complaint should be regarded as being within time. The respondent submits that neither appellant was authorised to take a green sea turtle under the Nature Conversation Act 1992. It is submitted the elements of the offence under s 88(2) were proved at trial and the offence was proved beyond reasonable doubt. It is submitted that offence charged was not an offence related to property within the meaning of s 22 of the Criminal Code relying on Scriven v Sargent (No 2).[43] It is further submitted that even if s 22 of the Code had application to the events charged, the appellants’ evidence was not sufficient to give rise to an honest claim of rights. Section 22 required a belief there is a right recognised at law. The evidence of each of the appellants was that in order to comply with the law they needed to have a permit from the Native Title holders for the area. Both conceded they didn’t have one. Further, each appellant had been sent a letter on 24 March 2014 stating that as they did not hold ancestral connection to the area they were not people who held any native title rights to hunt in the sea off Mackay. This would lead one to the conclusion that each appellant did not in fact believe they had enforceable rights under Australian law to hunt and kill a sea turtle in the sea off Mackay. [43][2017] QCA 95; [2018] 1 Qd R 282.The preliminary point