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Dietman v Karpany (No 2)

Dietman v Karpany (No 2)

Case [2023] SASCA 119 16 November 2023

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DIETMAN v KARPANY (No 2)
[2023] SASCA 119
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
16 November 2023
PRIMARY INDUSTRY - FISH - SHELLFISH - ABALONE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING - PARTICULAR CASES
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY
The appellant informant appealed the decision of a magistrate acquitting the respondent of two counts of possession of an aquatic resource of a prescribed class in contravention of s 72(2)(c) of the Fisheries Management Act 2007 (SA). One count alleged possession of 153 greenlip abalone (Count 3) and the other alleged possession of 118 undersized greenlip abalone (Count 4). The abalone were in the one catch bag, with the 118 abalone being included with the 153 abalone.
This Court allowed the appeal and held that the magistrate had erred in upholding the respondent’s defence in reliance upon a native title right to fish. Whilst indicating an intention to set aside the acquittals on Counts 3 and 4, and to remit the matter to the Magistrates Court for sentence, the Court requested submissions from the parties as to whether it was appropriate to substitute convictions on both counts. In particular, the Court questioned whether the overlap in the elements and conduct the subject of the two counts meant that it would infringe the principle against double jeopardy to enter convictions on both counts.
Held (per the Court):
1.The elements of Count 3 are wholly included within the elements of Count 4. In accordance with the first aspect of double jeopardy described in Pearce v The Queen (1998) 194 CLR 610, the respondent should not be convicted of both Count 3 and Count 4 offences for the same abalone. It is appropriate that this Court enter a conviction in respect of Count 3 only and the matter be remitted for sentencing on that basis.

Fisheries (General) Regulations 2000 rr 7, 42, 44; Fisheries Management Act 2007 (SA) ss 3, 7, 72; Fisheries Management (General) Regulations 2007 rr 3, 8; Legislation Interpretation Act 2021 (SA) s 14; Native Title Act 1993 (Cth) s 211, referred to.
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Dietman v Karpany [2023] SASCA 52; Disorganised Developments Pty Ltd v State of South Australia (2023) 97 ALJR 575; H Lundbeck A/S v Sandoz Pty Ltd (2022) 96 ALJR 208; King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; Mills v Meeking (1990) 169 CLR 214; Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Pearce v The Queen (1998) 194 CLR 610;

Grounds of appeal

[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 Dietman v Karpany (No 2)

Details

AGLC: Dietman v Karpany (No 2) [2023] SASCA 119
Case: [2023] SASCA 119
Decision Date: 16 November 2023

CaseChat Overview and Summary

Dietman (the appellant) was charged with an offence under the *Fisheries Act 1971* (SA) concerning the possession of abalone. Karpany (the respondent) was the informant. The appellant had previously been acquitted of a similar charge relating to the same abalone. The appeal concerned the application of the doctrine of double jeopardy to the second prosecution.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the appellant's prior acquittal for an offence under the *Fisheries Act 1971* (SA) barred the subsequent prosecution for an offence under the *Fisheries Act 1982* (SA), notwithstanding that the two offences were distinct in law. The court was required to consider the scope and application of the principle of double jeopardy in the context of statutory offences.

The court held that the doctrine of double jeopardy, which protects an individual from being tried twice for the same offence, did not apply in this instance. The reasoning was that the two offences, although relating to the same abalone, were distinct in their statutory basis and elements. The *Fisheries Act 1971* (SA) and the *Fisheries Act 1982* (SA) created separate offences, and an acquittal under one Act did not preclude a prosecution under the other. The court emphasised that the identity of the offence, not merely the factual circumstances, is determinative for the application of the double jeopardy principle.

The appeal was dismissed.

Orders