Dietman v Karpany

The appellant appealed the respondent's acquittals on Counts 3 and 4 of charges under the *Fisheries Management Act*. The dispute centred on whether the Magistrate erred in finding that the appellant bore the persuasive onus to disprove the conditions for the operation of s 211(2) of the *Native Title Act* beyond reasonable doubt. The factual background involved the respondent, a self-identified Narungga man, being found in possession of 153 abalone, many of which were undersized. The respondent claimed to be exercising his native title rights by fishing for non-commercial purposes.

The legal issue before the court was who bore the persuasive onus of proof regarding the conditions for the native title defence under s 211(2) of the *Native Title Act* in criminal proceedings alleging contraventions of the *Fisheries Management Act*. Specifically, the court had to determine whether the prosecution was required to disprove the elements of the defence beyond reasonable doubt, or if the respondent was required to establish them on the balance of probabilities.

The Magistrate had concluded that the persuasive onus lay with the prosecution, reasoning that it was appropriate to be cautious in interpreting s 211 in a way that would deprive a defendant of a defence intended to protect fishing rights. The Magistrate noted the lack of clear guidance in the legislation or authorities and, guided by a sense of fairness, placed the onus on the prosecution. The appellant argued that this approach was erroneous. The Full Court acknowledged that while the prosecution had established the basic elements of the offence, the respondent had not discharged the evidentiary onus in relation to the s 211(2) defence, and the outcome depended on the allocation of the persuasive onus.

The Full Court found that the Magistrate had erred in placing the persuasive onus on the prosecution. The Court held that the conditions for the operation of s 211(2) of the *Native Title Act* were matters that the defendant must establish on the balance of probabilities. As the respondent had not established these conditions on the balance of probabilities, the defence under s 211(2) was not made out. Consequently, the appeal was allowed, and the acquittals on Counts 3 and 4 were set aside.