Dietman v Brennan-Kuss

This case concerned an appeal from the Magistrates Court to the Supreme Court of South Australia, brought by the complainant, Dietman, against the respondents, Brennan-Kuss and others. The dispute arose from the consignment of White Shark jaws and teeth for sale at a Coober Pedy gallery. The sharks had been lawfully caught between 1991 and 1993, prior to White Shark being declared a protected species in 1998 under the repealed Fisheries Act 1982 (SA) and subsequently under the Fisheries Management Act 2007 (SA) and its Regulations. The respondents were aware that White Shark was a protected species in 2010 when the items were seized.

The primary legal issue before the Full Court was the interpretation of section 72(2)(b) of the Fisheries Management Act 2007 (SA), which creates offences relating to the possession or commercial dealing in aquatic resources. Specifically, the court had to determine whether this provision applied to species that were declared protected after they were lawfully taken. A secondary issue concerned the availability of defences under section 72(5) of the Act, particularly whether a defence related to the lawful taking of the fish was applicable.

The Full Court, comprising Chief Justice Kourakis, Justice Bampton, and Chief Judge Muecke, allowed the appeal. The court reasoned that the text and context of section 72(2)(b) supported a construction that prohibited possession or commercial dealing in an aquatic resource of a species declared protected at the time of that possession or dealing, irrespective of when the species was lawfully taken. This interpretation was found to align with the Act's purpose of deterring the taking of protected species by closing potential markets, a strategy recognised internationally. The court held that the defence under section 72(5)(b)(ii), which requires the respondent to have had no reason to believe the fish was taken in contravention of the Act, was not available for charges concerning the possession or dealing of a protected species. Instead, only the defence under section 72(5)(b)(iii), that the respondents had no reason to believe the items were White Shark, was considered potentially applicable.