Dudley v Department of Primary Industries and Regions South Australia - [2018] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DUDLEY & ORS v DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONS SOUTH AUSTRALIA (PIRSA)
[2018] SASCFC 23
Judgment of The Full Court
(The Honourable Justice Bampton, The Honourable Justice Lovell and The Honourable Justice Doyle)
13 April 2018
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - NATIVE TITLE - PROOF AND EVIDENCE
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING PROHIBITED TYPE OF FISH
PRIMARY INDUSTRY - FISH - ABORIGINAL CUSTOMARY RIGHTS
Five men (including the four appellants) were found in possession of 370 greenlip abalone. They were charged with the offence of possessing an aquatic resource of a prescribed class, contrary to s 72(2)(c) of the Fisheries Management Act 2007 (SA). It was further alleged that the defendants were in possession of a fish of a priority species, and for the purposes of sale, within the meaning of s 72(2)(b)(i), hence exposing them to the higher penalty regime under that section.
The defendants are all Aboriginal Australians and members of the Narungga people, and they relied by way of defence upon a contention that they were not acting unlawfully because they were exercising their native title rights to fish for abalone, pursuant to s 211 of the Native Title Act 1993 (Cth).
Following a trial before a Magistrate, the defendants were all convicted. Their defence based upon s 211 of the Native Title Act was rejected, essentially on the ground that the Magistrate was not satisfied that the defendants did not have the abalone for commercial purposes. The Magistrate sentenced each of the men to sentences of six months imprisonment, which her Honour suspended in the case of two defendants and did not suspend in the case of the remaining three. Her Honour also made orders permanently prohibiting each of them from fishing for abalone.
On appeal to a single judge, the single judge rejected the appeal against conviction. His Honour held that the defendants had not discharged their evidential onus in relation to a defence under s 211 of the Native Title Act. The single judge allowed the appeals against sentence brought by the defendants, and resentenced them. He imposed prison sentences that were, in the case of three of the defendants, reduced in length, and in the case of all defendants, suspended their sentences. The single judge made orders prohibiting two of the defendants from fishing from abalone for five and 10 years respectively, but declined to impose any such order in respect of the remaining three defendants.
Four of the defendants have appealed their convictions to this Court. In their appeal, they challenge the rejection of their defence based upon an exercise of their native title rights, contending inter alia that the evidence at trial was sufficient to discharge their evidential onus in relation to that defence. The prosecution has cross-appealed in relation to the sentence imposed upon three of the defendants. The cross-appeal was confined to a complaint that the single judge erred in not making any order prohibiting these three defendants from fishing for abalone.
Held per the Court:
1. The defendants bore an evidential onus in relation to their defence under s 211 of the Native Title Act, and this required evidence capable of establishing, inter alia, that the native title right contended for in this case existed, and did so as a part of a system of rules observed by the defendants’ people.
2.       The evidence at trial was insufficient to discharge this evidential onus. It rose no higher than evidence of the historical engagement in the activity of fishing.
3. Further, even if the defendants had discharged their evidential onus in relation to their defence under s 211 of the Native Title Act, the prosecution would nevertheless have been entitled to rely upon the evidentiary aid in s 72(3)(a) of the Fisheries Act. The operation of that evidential aid was not inconsistent with the operation of s 211 of the Native Title Act, and hence precluded by s 109 of the Constitution.
4.       The appeals against conviction should be dismissed.
5. In relation to the appeal against sentence, the defendants have not established error in the sense required by House v The King (1936) 55 CLR 499.
6.       Permission to appeal against sentence should be declined.
Fisheries Management Act 2007 (SA) ss 72, 100, 110; Native Title Act 1993 (Cth) ss 211, 223; Fisheries Management (General) Regulations 2007 (Cth) R 8, Sch 3, Sch 6; Australian Constitution s 109; Criminal Law (Sentencing) Act 1988 (SA) ss 9c, 13, referred to.
Police v Young (2012) 114 SASR 567; Department for Primary Industries & Regions SA v Dudley & Ors [2015] SAMC 57; Mason v Tritton (1994) 34 NSWLR 572; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Zecevic [1986] VR 797; Jayasena v R [1970] AC 618; R v Youssef (1990) 50 A Crim R 1; Derschaw v Sutton (1996) 17 WAR 419; Dillon v Davies (1998) 8 Tas R 229; 145 FLR 111; Mabo v Queensland (No 2) (1992) 175 CLR 1; Samuels v Stokes (1973) 130 CLR 490; Commonwealth v Yarmirr (2001) 208 CLR 1; Akiba v The Commonwealth (2013) 250 CLR 209; Yanner v Eaton (1999) 201 CLR 351; Kanak v National Native Title Tribunal (1995) 61 FCR 103; Northern Territory v Alyawarr (2005) 145 FCR 442; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Members of the Yorta Yorta Community v State of Victoria and Others (2002) 214 CLR 422; Western Australia v Commonwealth (1995) 183 CLR 373; Dudley v Department of Primary Industries and Regions (Pirsa) & Anor [2016] SASC 144; House v The King (1936) 55 CLR 499; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; Police v Watson (2016) 125 SASR 212, considered.

DUDLEY & ORS v DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONS SOUTH AUSTRALIA (PIRSA)
[2018] SASCFC 23
Full Court: Bampton, Lovell and Doyle JJ
THE COURT:

On 30 December 2011, Phillip Dudley, Scott O’Loughlin, Gregory Wanganeen, Robin Wanganeen and Edgar Wanganeen went fishing. When they returned in their dinghy to a secluded beach near Point Pearce they were approached by two Fisheries Officers. When Gregory Wanganeen was asked what they had caught he said “only a couple of strong fish and some squid”. When asked whether they had caught any abalone, Phillip Dudley said “nah mate”, and Gregory Wanganeen said “nah fuck all”. They were found to be in possession of 370 greenlip abalone, of which 188 were undersized. The total catch weighed 43.495 kilograms.
The five men were charged with the offence of possessing an aquatic resource of a prescribed class, contrary to s 72(2)(c) of the Fisheries Management Act 2007 (SA) (the Fisheries Act). It was further alleged that the defendants were in possession of fish of a priority species, and for the purposes of sale, within the meaning of s 72(2)(b)(i) of that Act.
The trial was heard in the Magistrates Court. The prosecution case was that the five defendants were jointly in possession of a commercial quantity of abalone for the purpose of sale. The defendants are all Aboriginal Australians and members of the Narungga people, and they relied by way of defence upon a contention that they were not acting unlawfully because they were exercising their native title rights to fish for abalone, pursuant to s 211 of the Native Title Act 1993 (Cth) (the Native Title Act).
On 10 September 2015, the Magistrate convicted the defendants.[1] The Magistrate found proved that the defendants were engaged in a joint enterprise with each other, and hence that each was in possession of the abalone. While accepting that the Narungga people had native title rights that included a right to take abalone in the area where the alleged offence occurred, the Magistrate was not satisfied that the defendants did not have the abalone for commercial purposes. Her Honour thus held that s 211 of the Native Title Act did not apply, and that she was satisfied beyond reasonable doubt in the case of each defendant that the offence under s 72(2) of the Fisheries Act had been made out.
[1] Department for Primary Industries & Regions SA v Dudley & Ors [2015] SAMC 57.
The Magistrate sentenced all of the defendants.
The defendants appealed their convictions and sentences. Nicholson J dismissed the appeals against conviction on 2 September 2016, but allowed the appeals against sentence. Nicholson J subsequently resentenced the defendants.
Four of the defendants[2] have appealed their convictions to this Court. In their appeal they challenge the rejection of their defence based upon the exercise of their native title rights. The appeal raises various issues in relation to the operation of s 211 of the Native Title Act, including whether the evidence at trial was sufficient to discharge the defendants’ evidentiary onus of raising a defence under that section, and the interrelationship between s 211 of the Native Title Act and the presumption of a purpose of sale under s 72(3)(a) of the Fisheries Act.
[2] All except Robin Wanganeen.
The Informant in these proceedings, Mr Dietman,[3] has cross-appealed the sentences imposed by Nicholson J in respect of three of the defendants (Phillip Dudley, Gregory Wanganeen and Robin Wanganeen).
[3] Mr Dietman is the Director Operations in the Fisheries and Aquaculture Division of the Department for Primary Industries and Regions SA, and the Informant in these proceedings.
The legislation
Section 72 of the Fisheries Act relevantly provides:
72—Sale, purchase or possession of aquatic resources without authority prohibited
(1)...
(2)Subject to this section, if a person sells or purchases, or has possession or control of—
(a)     ...; or
(b)     ...; or
(c)     an aquatic resource of a prescribed class,
the person is guilty of an offence.
Maximum penalty:
(a)     in the case of a body corporate ...
(b)     in the case of a natural person—
(i)if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$50 000 or imprisonment for 4 years;
(ii)in any other case—$20 000.
(3)In proceedings for an offence against subsection (2)—
(a)     if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control, it will be presumed, in the absence of proof to the contrary, that the person had that aquatic resource in his or her possession or control for the purposes of sale;
(b)     ...
(4)...
(5)...
(6)In proceedings for an offence against subsection (2) relating to aquatic resources of a class prescribed for the purposes of that subsection, if it is proved—
(a)     that the defendant was not—
(i)the holder of an authority authorising the taking of aquatic resources of that class; or
(ii)a registered fish processor; and
(b)     that the defendant sold or purchased or had possession or control of more than the prescribed quantity of aquatic resources of that class,
the offence is proved unless the defendant establishes the defence under subsection (5).
Leaving aside potential defences, for an offence under s 72(2) to be made out, the prosecution was required to prove that the defendants were in possession of an “aquatic resource of a prescribed class”. It is common ground that the abalone found in the defendants’ possession were an aquatic resource of a prescribed class.
In order to come within the more onerous penalty provision in s 72(2)(b)(i),[4] the prosecution was required to establish that the offence involved “possession … of fish of a priority species for the purposes of sale”. It is common ground that the abalone were fish of a priority species. In establishing that the defendants’ possession was for the purposes of sale, s 72(3)(a) provides for an evidentiary presumption in the context of proceedings for an offence against s 72(2). The presumption is triggered by proof of possession of a “commercial quantity”. In the case of abalone, a quantity of 26 or more is, by regulation, a commercial quantity.[5] It follows that the defendants were presumed, in the absence of proof to the contrary, to have had the abalone in their possession for the purposes of sale.
[4] Which the parties agreed created a separate offence.
[5] Fisheries Management (General) Regulations 2007, Schedule 3.
Section 72(6) relevantly provides that if it is proved that the defendant did not have an authority (i.e. commercial licence) to take abalone, and had possession of more than the prescribed quantity, then the offence against s 72(2) is proved unless the defendant establishes a defence under s 72(5). It was again common ground that the defendants did not have an authority, that they were in possession of more than the prescribed quantity of abalone,[6] and that the circumstances did not give rise to a defence under s 72(5).
[6] Regulation 8(2) of the Fisheries Management (General) Regulations 2007 provides that for the purposes of s 72(6) the prescribed quantity is the quantity in Schedule 6 of those regulations – namely five per person per day, subject to an overall boat limit of 10 (see clause 62 of Schedule 6).
The net effect of the above is that, leaving aside the potential operation of a defence under s 211 of the Native Title Act, in order to avoid conviction of an offence under s 72(2) (and being subject to the more onerous penalty regime of s 72(2)(b)(i)), an onus fell on the defendants to prove, on the balance of probabilities,[7] that they did not have the abalone in their possession for the purposes of sale.
[7] Police v Young (2012) 114 SASR 567 at [48]-[52].
The defendants contended, based on the evidence at trial, that the abalone in their possession was not intended for sale, but rather was intended for personal consumption and distribution by way of sharing amongst family and other indigenous community members at Point Pearce. This, they contended, not only took them outside the more onerous penalty regime of s 72(2)(b)(i), but also gave rise to a defence in that they were not acting unlawfully because they were exercising their native title rights to fish for and acquire the abalone, pursuant to s 211 of the Native Title Act.
Turning to s 211 of the Native Title Act, it is in these terms:
211―Preservation of certain native title rights and interests
Requirements for removal of prohibition etc. on native title holders
(1)Subsection (2) applies if:
(a)     the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and
(b)     a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and
(ba)   the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and
(c)     the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.
Removal of prohibition etc. on native title holders
(2)If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:
(a)     for the purpose of satisfying their personal, domestic or non-commercial communal needs; and
(b)     in exercise or enjoyment of their native title rights and interests.
Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.
Definition of class of activity
(3)Each of the following is a separate class of activity:
(a)     hunting;
(b)     fishing;
(c)     gathering;
(d)     a cultural or spiritual activity;
(e)     any other kind of activity prescribed for the purpose of this paragraph.
The structure of s 211 is thus that if the matters in ss 211(1)(a)-(c) are made out, then s 211(2) applies; and if the two matters in ss 211(2)(a) and (b) are made out, then the defendants would have a defence to their alleged contraventions of s 72(2) of the Fisheries Act. They would have a defence because, if s 211 of the Native Title Act applies, then by reason of the inconsistency between this Federal legislative provision and the State legislative provision in s72(2) of the Fisheries Act, s 109 of the Constitution would operate to suspend the operation of s 72(2) of the Fisheries Act. There would be no unlawful possession and taking of abalone.
In terms of the matters arising for consideration under s 211, there is no dispute that s 72(2) of the Fisheries Act is a state law for the purposes of s 211(1)(b), and that the matters in ss 211(1)(ba) and (c) are made out. However, both s 211(1)(a) and s 211(2)(b) refer to the “exercise or enjoyment of … native title rights and interests”. Under s 223(1), native title rights and interests are defined as follows:
(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)     the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)     the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)     the rights and interests are recognised by the common law of Australia.
It follows that the defence under s 211(2) of the Native Title Act required (subject to burden and standard of proof considerations) the defendants to be “native title holders” with respect to the activity in question and that, on the day in question, when they collected the 370 abalone, they did so (a) for the purpose of satisfying their personal, domestic or non-commercial needs,[8] and (b) in the exercise or enjoyment of their native title rights and interests as recognised by the common law of Australia.
[8] If a defendant had a purpose of sale under s 72(2)(b)(i) of the Fisheries Act, then they would not have a purpose of satisfying their personal, domestic or non-commercial needs under s 211(2)(a) of the Native Title Act.
The trial before the Magistrate
At trial, the prosecution called evidence from two Fisheries Officers. They gave evidence as to the observations they made of the defendants and their catch on the day in question. They also gave some general evidence about their knowledge and experience of abalone fishing in the area.
The defendants called three witnesses: Gregory Wanganeen (one of the defendants), Klynton Wanganeen (who is Narungga on his father’s side and Ngarrindjeri on his mother’s side, and is related to all of the defendants) and Dr Amy Roberts (an academic, anthropologist and archaeologist). Both Gregory and Klynton Wanganeen gave evidence in relation to their personal experience of fishing in the area, including for abalone, and their own knowledge or understanding of the role and significance of this activity in their community. Dr Roberts gave expert evidence in relation to the tradition and history of fishing by the Narungga people in the area.

Because of its significance to the issues to be determined in this appeal, it is appropriate to summarise the evidence of the three defence witnesses. In so doing, we have drawn to some extent upon the summary of that evidence by Nicholson J, which we are satisfied is an accurate and fair summary of the evidence given.
Evidence of Gregory Wanganeen
Gregory Wanganeen was 27 at the time he gave evidence. He said that he is Narungga, that the area of the Narungga is the Yorke Peninsula and that “we provide for our tribe with seafood”. He gave a description of the various seafoods he would fish for and collect, both for his own consumption and for sharing with his family and community.
He explained that he started to learn about fishing when he was about 12 years of age. He was taught by his father’s and mother’s brothers and other older men. He was aware that the other defendants had also learnt how to fish in the same way that he did, namely by watching and learning from, and fishing together with, the older men. They used to snorkel for abalone. Sometimes they walked on the reef where it was shallow and took abalone off the reef. They would use a rock to knock the abalone off the reef. Other times they would go snorkelling and diving for abalone. When they snorkelled they used a fishing knife or a screwdriver to collect the abalone.
Gregory Wanganeen described the various areas in which he fished. He described how they would fish most days if they could, particularly in the warmer weather. They would generally cook and eat the fish the same day. He would share the fish with other people. A purpose for fishing was to “feed our people” meaning his tribe, his family and other community members.
Gregory Wanganeen grew up in Point Pearce and he gave a description of the number of families that lived there from time to time. It was clear from his evidence that fishing was, for him and the other men with whom he mixed, a very important activity. It was more than recreational; it was to obtain food and to obtain food that could be shared with other people in the community. He was told by the elders when growing up that abalone was one of the Narungga traditional foods, adding that “you know, [we] eat it, we love it, we share it”. He said he was told that they were allowed to take from the sea, and so they hunted and gathered for their people from the sea. However, he acknowledged that he had not previously been involved in taking such a large catch of abalone.
Gregory Wanganeen also described how they removed the abalone from their shell, how they prepared it for eating and how they cooked it in various ways. They minced them, boiled them, fried them and so on. He was taught by his elders how to do these things. Sometimes they pickled abalone in a jar. Sometimes they let them sit in the fridge or froze them for later consumption. He gave some evidence about their storage practices, particularly by using vinegar. He gave examples of occasions for sharing abalone with family and other community members. He said that an adult might eat up to between about five and seven abalone in a sitting, and a child about one or two. He said that some of the elders liked the smaller abalone as they were not as dry as the larger ones.
There was evidence that the population in the Point Pearce area was generally up to about 200 people. Gregory Wanganeen said that during the summer there would be about 100 visitors to the area. He said that people would come around and visit, and that they would have meals and drinks together. He also said that his grandmother’s house (where he was staying) would become like a drop-in centre on funeral days, with 20 to 30 people wanting a feed.
As for the fishing trip on 30 December 2011, Gregory Wanganeen said it was a hot day and that he and the others decided to go out and get a feed. It was a spontaneous trip rather than anything that was pre-arranged. He only told one person that he was going fishing. He said that the plan was “not really” to fish for only abalone, although he acknowledged that apart from the 370 abalone they only caught about 10 butterfish, a couple of whiting, a few blue crabs and five or six warrenas.
Gregory Wanganeen’s evidence was that the five of them who went fishing were going to have a “big seafood platter” themselves, using about 20 to 30 of the abalone, and then divide and share the rest of the catch. He said he would have put some of his share in the freezer for when he wanted to cook them on another occasion, and that the others would have done the same – including Phillip Dudley and Scott O’Loughlin, who he said would have taken their shares back to their homes in Adelaide where they would probably have been approached by their elders to share the abalone.
Gregory Wanganeen went on to say that they would have shared the catch with people in the community at the time. They would have shared them not only with immediate family, but up to about 30 or 35 members of the community with whom they were close. But he agreed they had not made any plans in that regard.
Finally, Greg Wanganeen denied any plan to sell the abalone back in Adelaide. He said that he had told the Fisheries Officers that they had “fuck all” abalone because he did not want to have to answer more questions or end up in court.
Evidence of Klynton Wanganeen
Klynton Wanganeen grew up in Point Pearce. While he left and came to Adelaide in 1989, he had maintained a connection with the Narungga people and regularly visited the area.
When asked about the nature of his familial relationships with each of the defendants, Klynton Wanganeen explained:
I have relationships with those men, but I also have responsibility to them and my responsibility is when I take them fishing, when they were younger, my responsibility was to teach them how to do things the proper way and also to make sure they done it in a safe manner because when you swim out in the water, there are dangerous species of sharks. So being safe, being responsible, making sure that they know what they are doing and where to go in any different weather in the different climatic conditions because the catching of fish - catching of fish is quite important to us culturally.
Klynton Wanganeen said that he was taught to fish by many people including his father and various uncles. He was shown how to take abalone and where to get them. He has taken his own sons and various of his nephews and cousins fishing from a very young age and has taught them about fishing, including about the best places to fish.
Klynton Wanganeen explained how he fished for abalone by using a net bag, a spear gun and a knife. He did not go out just to get abalone, but to get a couple of species of fish, particularly butterfish. He explained how he would swim out to get the abalone, but that he tried not to take too much from one area. He said:
And I know that the seriousness of depleting resources from the sea and wiping out species from areas. That’s why cultural taking is important because our people don’t rape and pillage the sea.
Klynton Wanganeen spoke about the quantity of abalone he might take on a particular occasion, and the quantity his extended family might consume. He emphasised the cultural importance of sharing as symbolising that a person is a good provider and a person to be looked up to in the community. He also gave evidence about the sizes of abalone that he and others would take, and the various means by which abalone could be prepared and cooked for eating.
The evidence of Klynton Wanganeen was that the population at Point Pearce was normally about 180 to 200 people, although with summer visitors (most of whom were Narungga people with their relatives) it could swell to 300 to 400 people.
Evidence of Dr Roberts
Dr Roberts has a PhD in archaeology and a graduate certificate in anthropology. She has worked with members of the Narungga community since about the year 2000, and has focussed in particular on traditional fishing and their use of the coastal zone and seascape.
According to Dr Roberts, the use of shellfish by the Narungga people is well documented in the earliest records available from about 1850. She described a range of documentary and archaeological evidence to the effect that the Narungga people took shellfish, including abalone, as part of their fishing activities. The taking of abalone appeared in the early ethno-historical records. Shellfish have always been an important part of the diet of the Narungga people.
In the present day, Dr Roberts has seen Narungga people collecting abalone, as well as other important cultural species such as butterfish. Dr Roberts has not specifically investigated post-European contact use of abalone. However, she has observed evidence, from recent camping areas in and about Point Pearce, of the taking and consumption of abalone. She has identified traditional language names that have been recorded over the years for abalone. There has also been a plethora of common names.
Dr Roberts assumed that the Narungga people continue to take abalone from intertidal areas, but she has not seen any direct evidence of this. She has observed abalone being taken from deep waters, and the early records indicate that Narungga people were observed diving in relatively deep waters in order to fish generally. It is her assumption that people undertaking deep water swimming and diving were collecting a range of seafoods, and that this occurred from the earliest periods before European contact.
Dr Roberts was not aware of any information from the archaeological records about traditional methods for preparation of abalone by Narungga people. However, from talking to people in the modern day and from oral histories, she has had or been aware of general discussions about cooking shellfish on campfires.
According to Dr Roberts, the sharing of fish and other marine species was enormously important to the Narungga community. It formed part of the wider kinship system of respecting elders, and there is a cultural expectation that a catch will be shared with elders. Community members had spoken to her about the need to collect large quantities of fish or shellfish at certain times, such as on the occasion of a funeral or other celebrations of major events when it is expected that larger groups of Aboriginal people from around the State will gather. This was something additional to or beyond sharing with the family. But she had not had any discussions about the circumstances in which abalone in particular might be taken from the sea in large quantities.
During cross-examination, Dr Roberts agreed that the research she undertook for the purpose of preparing a report for the Court and giving evidence in this matter was “primarily desktop”, with no interviews or field work sessions. She acknowledged in her report that she was not claiming to present any “comprehensive analysis of the use of abalone by the Narungga community”.
Dr Roberts also agreed with the cross-examiner that the Narungga people, when fishing, would take quite a long list of different fish and shellfish. In other words, the Narungga people, as would be expected of a coastal community, fished in the general sense.
Dr Roberts agreed that it was possible, given the availability of abalone and other shellfish from the rocks, that deep diving beyond the intertidal waters would be mainly to look for other types of fish. She said that generally people including, by implication, the Narungga, would be opportunistic in terms of their hunting, harvesting and gathering.
The Magistrate’s reasoning leading to conviction
The Magistrate was satisfied that the five defendants were jointly engaged in snorkelling for abalone, and that all five of them were in possession of the abalone and other fish located on the boat from which they disembarked. Her Honour also found that they were members of the Narungga people, with native title rights that included a right to take abalone in the area where the offence occurred.
The Magistrate reasoned that the real issue was whether the taking of the 370 abalone by the defendants was for satisfying the purpose required by s 211(2)(a) of the Native Title Act, that is, for their “personal, domestic or non-commercial communal needs”.
The Magistrate then considered the evidence relevant to this issue. Her Honour summarised the evidence of Gregory Wanganeen and Klynton Wanganeen as to their fishing activities, and the significance of these activities in feeding their family and community.
The Magistrate referred to the lies told by Philip Dudley and Gregory Wanganeen when first asked by the Fisheries Officers whether they had caught any abalone. Her Honour referred to the latter’s explanation for his lie, namely that he did not want to find himself having to answer more questions. She also noted that none of the defendants said anything about feeding their community until after the abalone were located – at which time Gregory Wanganeen had said they were “just feeding the family that’s all”, and a little later “all we’re doing is just feeding the family that’s all, hey”. The Magistrate considered that it was apparent from this that Gregory Wanganeen was aware that he had a native title right to take abalone for feeding his family, but that he had not been prepared to tell the Fisheries Officers this until after their abalone had been discovered.
While apparently accepting this evidence, and the evidence of Gregory and Klynton Wanganeen that they regularly caught abalone and other fish to feed their community, including at some community gatherings with large numbers of people, the Magistrate noted Gregory Wanganeen’s acknowledgement that he had not previously been involved in taking such a large quantity of abalone.
The Magistrate was concerned by the generality of, and gaps in, the evidence of Gregory Wanganeen as to the plans for the catch on the day in question. Her Honour pointed out that the evidence did not reveal with any precision how many people were present in the community on that day. According to Gregory Wanganeen, if there was a funeral or special occasion there might be 20 or 30 people to feed at his grandmother’s house. However, there was no evidence that there was any such occasion on the day in question.
Further, there was no evidence that anyone other than the five defendants were planning to share in the catch. Gregory Wanganeen had no wife or children living with him, and he only told one person that he and the other defendants were going fishing. There was no evidence of any plan or preparation for distributing a large quantity of abalone among members of the community. While there was reference to the possibility of pickling some of the catch, there was no evidence of preparatory steps in this regard.
The Magistrate mentioned that while the evidence was to the effect that members of the defendants’ community liked a variety of fish, there were minimal other fish in the boat. Her Honour also considered it significant that a large proportion of the abalone were undersized (188 out of 370). While there was some evidence that older members of the community preferred small abalone, there was no evidence as to how many older people were present in the community on that particular day.
The Magistrate concluded as follows:
I accept that in certain circumstances larger quantities of fish would be shared out among other members of the community, but if that was the intention, I would expect there to be a far greater variety of fish and for some enquiry to be made of the other persons in the community to ascertain whether people were going to be around to share in the produce, otherwise, there was a real risk of the fish going to waste. Greg Wanganeen’s evidence of how he would preserve the excess of pickling or freezing was given in a manner which suggested it was an afterthought to explain the quantities taken.
I consider that in this case the lie told by both Philip Dudley and Greg Wanganeen that there was no abalone on the boat, is evidence of a guilty mind. However, I have also taken into account the evidence Greg Wanganeen has given in court with regard to the amount of abalone he could consume, the amount of abalone other persons could consume and that any excess would be pickled and frozen.
I am, however, not satisfied the defendants did not have the abalone for a commercial purpose. I am therefore satisfied section 211 of the Native Title Act does not apply and that the defendants were in possession of the abalone contrary to section 72(2) of the Fisheries Management Act 2007. I am likewise satisfied, beyond reasonable doubt, that 188 of the abalone were undersized.
Accordingly, I am satisfied beyond reasonable doubt the offence has been made out and I find the defendants guilty as charged.
It appears from the above passage that the Magistrate approached the application of s 211 of the Native Title Act to the evidence before her on the basis that the defendants bore the burden of proof on the balance of probabilities to establish the matters in ss 211(2)(a) and (b). Her Honour expressly stated that she was not satisfied of the matter in s 211(2)(a) (i.e. that their possession was for a non-commercial purpose), but by implication was also not satisfied of the matter in s 211(2)(b) (i.e. that the taking of abalone involved the exercise of a native title right).[9]
[9] While the Magistrate accepted, or was prepared to assume, the existence of some such right, her Honour’s non-satisfaction of a non-commercial purpose presumably carried with it non-satisfaction that the taking involved an exercise of that right.
The Magistrate did not expressly engage in the two stage process of first determining whether a defence under s 211 had been raised on the evidence, and then, if so, considering whether the prosecution had excluded the application of a defence under that section beyond reasonable doubt.
Further, the Magistrate did not expressly address s 72(3)(a) of the Fisheries Act, and in particular whether the defendants had overcome the presumption of a purpose of sale that operated against them under that section. However, given her Honour’s rejection of the defence under s 211 (and in particular her non-satisfaction of a non-commercial purpose under s 211(2)(a)), it would follow that her Honour would not have been satisfied that the evidence adduced by the defendants was sufficient to overcome that presumption that the defendants were in possession for the purpose of sale.
Nicholson J’s reasoning on the conviction appeal
On the appeal before Nicholson J, the prosecution conceded that the defendants were all members of the Narungga people, but through a notice of contention challenged the Magistrate’s finding that the defendants had established that their people had native title rights which included a right to take abalone in the area where the alleged offending occurred.
More particularly, the prosecution contended on the appeal before Nicholson J that in order to take advantage of the defence potentially available under s 211 of the Native Title Act, a defendant first had to satisfy an evidential burden with respect to all factual requirements of s 211, before the prosecution would then bear the legal burden of excluding the defence. Those factual requirements of s 211 included:
1. that the Narungga community’s present day customary rights included the spontaneous taking of large quantities of abalone for sharing in the community without there being an special occasion for that sharing; and
2. that the abalone taken on the day in question were in fact taken by the defendants in the exercise of that customary right for their personal, domestic or non-commercial communal needs.
The prosecution contended that the evidence at trial had been insufficient to establish an evidential basis for either of the above propositions and that, in the absence thereof, the prosecution did not bear any legal burden of excluding the application of s 211.

Nicholson J accepted this submission. This critical passage from his Honour’s reasoning in support of this conclusion was as follows:
Dr Roberts’ expert evidence was potentially relevant to the [first] issue. However, her evidence never went any higher than that the Narungga have always been a coastal fishing community and that the taking of all types of sea life, including abalone, and sharing it amongst the community has, at all times, been a feature of their cultural life. There is no support in the evidence of Dr Roberts for the contention that present day customary rights amongst Narungga people include the spontaneous taking by anyone in that community of large quantities of abalone for sharing amongst the community, particularly in the absence of a special occasion. There was no suggestion in the evidence of Greg Wanganeen or Klynton Wanganeen that a special occasion had been planned at which the abalone gathered by the appellants was to be consumed.
The evidence of Dr Roberts went no higher than supporting the self-evident proposition that fishing in order to obtain food for the community is a natural and to be expected activity for a coastal community such as the Narungga. As Gleeson CJ observed in Mason:[10]
[S]ome care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.
Consistent with the reasoning and approach of Gleeson CJ, it was necessary for the appellants in the present case to give content to the system of rules relied on and to bring themselves and their activities on the day in question within the scope of those rules. As in Mason, the evidence in the present case demonstrated that the Narungga had traditionally taken abalone from the waters in which the appellants fished but the evidence was silent on the question of what qualifications there may be upon the exercise of any right that was involved. There is no evidence to support a finding that the taking of 370 abalone by these five men fell within any traditional custom or native title right. Indeed tending to the contrary was the understanding within the Narungga community, disclosed in the evidence of Greg Wanganeen and Klynton Wanganeen, that fisheries were to be protected and not to be “pillaged” as Klynton Wanganeen put it.
There was no evidence as to who within the community had the right to take the abalone, whether or the extent to which the right to take abalone was limited by way of quantity or size, or whether or the extent to which it was limited in accordance with particular locations.
In other words, and notwithstanding that the appellants were engaging in an ordinary activity common to the Narungga as a coastal community and no doubt exercised from before European settlement, the native title right or custom that they were purporting to exercise was not sufficiently defined by the evidence. It is not possible to assess whether the activity undertaken on the day in question fell within the native title right and custom asserted to be in existence.
I am satisfied that the appellants did not meet the evidentiary onus sufficient to raise the [first] and [second] propositions referred to above. There is insufficient evidence to raise a contention that Narungga traditional law and custom provided for the spontaneous taking of large quantities of abalone for sharing in the community at any time and in the absence of any special event.
This evidentiary onus not having been discharged, the respondent was not required to address section 211 and the defence was not available to the appellants.
[10] Mason v Tritton (1994) 34 NSWLR 572 at 574.
Having concluded that s 211 had no role to play on the facts of the matter, Nicholson J proceeded to consider the position if he were wrong about this. In particular, assuming the defendants had discharged their evidential burden in relation to the factual requirements of s 211, his Honour considered what would be necessary for the prosecution to discharge its onus of excluding the application of that defence. Nicholson J accepted the following submissions by the prosecution:
1. Section 211 of the Native Title Act does not, of itself, say anything about the standard of proof to be discharged by the prosecution once a defendant has discharged his or her evidential burden sufficiently to raise the defence.
2. In order to ascertain the standard of proof to be observed by the prosecution, one must look to the general law dealing with the proof of criminal offences together with any relevant statutory modification.
3. Consistently with principle, and provided that the defence under s 211 is raised, the prosecution would be obliged to exclude the factual requirements in ss 211(2)(a) and (2)(b) beyond reasonable doubt as part of its proof of the offence said to have been committed
4. However, s 72(3)(a) of the Fisheries Act (with its evidentiary presumption in favour of a purpose of sale) has modified the common law as to proof with respect to the factual issue raised in s 211(2)(a). The prosecution must still prove beyond reasonable doubt that a defendant had a commercial quantity in his or her possession so as to trigger the presumption. However, having done so, under s 72(3)(a) the defendant is presumed, in the absence of proof to the contrary, to be in possession of the abalone for the purpose of sale. Accordingly, once this same issue arises as part of the defence provided under s 211, by virtue of the requirement in s 211(2)(a), the prosecution need only exclude this aspect of the defence on the balance of probabilities and can rely on s 72(3)(a) in doing so. There is no inconsistency, so as to invoke s 109 of the Constitution, between s 72(3)(a) and s 211 in this respect.
Focussing upon the issue of the defendants’ purpose – and, in particular, whether their possession of the abalone was for the purpose “of satisfying their personal, domestic or non-commercial communal needs” within the meaning of s 211(2)(a) of the Native Title Act, as opposed to possession for the purpose of sale under s 72(2)(b)(i) of the Fisheries Act, Nicholson J commenced by observing that it was necessary to consider the purpose of each defendant. His Honour explained:
The evidence relevant to this question might come from each appellant giving direct evidence of their own purpose to be considered in the context of the whole of the evidence before the Court. Of course, in a criminal prosecution, an accused enjoys the right to silence and is not obliged to give evidence. No inference adverse to an accused’s case can be drawn from the fact of a failure to give evidence. However, where, as here, there is a reversal of the onus, it will often be difficult to discharge that onus without calling evidence. In this case, only one of the appellants, Greg Wanganeen, gave evidence. Nevertheless, it may have been open to the Magistrate to infer that he was giving evidence on behalf of the group as to their common purpose or to infer a relevant purpose for each of the other appellants from the whole of the evidence before the Court.
Nicholson J then turned to consider the evidence of Gregory Wanganeen, including in the context of the evidence given by Klynton Wanganeen and Dr Roberts in relation to the fishing activities of the Narungga people. His Honour summarised the Magistrate’s approach to that evidence in terms similar to our earlier summary of this aspect of the Magistrate’s reasons.
As Nicholson J explained, the Magistrate was ultimately not satisfied that the defendants did not have the abalone for a commercial purpose. Whilst the Magistrate stated this ultimate conclusion in the context of her consideration of the defence under s 211 of the Native Title Act, her Honour did in fact state and observe the appropriate onus and standard of proof required by s 72(3)(a). In other words, her Honour said that she was not satisfied on the evidence that all of the abalone had been acquired for the purpose of personal consumption or sharing in the community, as opposed to there being a (commercial) purpose of sale with respect to at least some of it. In the context of the evidence as a whole, the Magistrate did not believe Gregory Wanganeen’s evidence that all of the abalone was for personal consumption and sharing. Having reached that conclusion, there was no scope for her Honour to draw any different inference concerning the purpose held by the other four defendants, none of whom gave evidence.
Nicholson J reminded himself of the nature of an appeal by way of rehearing. He observed that it required him to conduct a real and independent review of the evidence before the Magistrate and come to his own conclusions, but noted that on issues that involved an assessment of the credibility and reliability of a witness the Court must make due allowance for the advantage of the Magistrate in having seen and heard the evidence at trial.
Nicholson J concluded that, having conducted his own review of the evidence relevant to the purpose the defendants, it was entirely open to the Magistrate to disbelieve Gregory Wanganeen and to reject the defence case that the abalone was intended for personal consumption and sharing within the community. His Honour noted that this conclusion by the Magistrate had involved issues of credibility and reliability, and that there was nothing in the evidence to suggest those findings were contrary to incontrovertible facts or compelling inferences, or were otherwise glaringly improbable in the sense those concepts are employed in the authorities.
Issues arising on the conviction appeal
The issues arising on the conviction appeal to this Court are essentially threefold:
1. Whether the evidence at trial was sufficient to discharge the evidential burden on the defendants to raise a defence under s 211 of the Native Title Act. The defendants contend that Nicholson J erred in holding that the evidence was not sufficient to raise the defence.
2. If the evidential burden was discharged, and hence the s 211 defence properly raised, whether s 211 operated (by dint of an inconsistency for the purposes of s 109 of the Constitution) to exclude the operation of the evidentiary presumption under s 72(3)(a) of the Fisheries Act. The defendants contend that Nicholson J erred in holding that there was no inconsistency such that s 72(3)(a) continued to operate.
3. Whether the prosecution had, on the evidence at trial, excluded the existence of a purpose for the defendants’ possession of satisfying their personal, domestic or non-commercial communal needs under s 211(2)(a) of the Native Title Act, such that the defence was excluded. Assuming the operation of the evidentiary presumption in s 72(3)(a) of the Fisheries Act, the defendants did not contend that Nicholson J erred in upholding the Magistrate’s finding that such a purpose had been excluded on the balance of probabilities. However, the prosecution contends (by way of notice of contention) that even if the presumption in s 72(3)(a) did not operate, with the result that the purpose needed to be excluded beyond reasonable doubt, such a purpose had nevertheless been excluded to that higher standard of proof.
It is appropriate to address each of these issues in turn.
Discharge of the defendants’ evidential burden to raise a defence under s 211
It was common ground that the defendants bore an evidential burden in respect of a defence under s 211 of the Native Title Act.
It is commonplace in the criminal law for an accused to bear an evidential burden in respect of a particular defence. The accused bears an evidential burden, for example, in respect of self-defence, provocation, duress, automatism and honest and reasonable mistake. It is only once that evidential burden has been discharged, and hence the defence properly raised, that the prosecution must discharge its legal burden of negating or excluding the defence according to the relevant standard of proof (usually beyond reasonable doubt).
In terms of what is required for a defendant to discharge the evidential burden, it requires that the defendant adduce (or point to)[11] sufficient evidence to raise the defence; that is, credible evidence capable of establishing the defence as a reasonable possibility.[12] The determination of whether a defendant has discharged his or her evidential burden thus requires some consideration of not only the nature and quality of the evidence said to raise the defence, but also of the particular factual and legal requirements of the defence. The evidence must be capable of establishing each of the requirements of the defence.
[11] Allowing for the fact that the prosecution evidence may be sufficient to discharge a defendant’s evidential burden.
[12] He Kaw Teh v The Queen (1985) 157 CLR 523 at 534-535; Jayasena v R [1970] AC 618 at 623-624; R v Zecevic [1986] VR 797 at 802; R v Youssef (1990) 50 A Crim R 1 at 3.
The authorities
In the context of a defence to a charge of proscribed fishing based upon an asserted native title right to fish, there are several decisions of assistance in determining what such a defence entails, and hence what may suffice in terms of discharging the evidential burden on a defendant to raise the defence. Of particular significance are the decisions in Mason v Tritton,[13] Derschaw v Sutton[14] and Dillon v Davies.[15] The first two of these involved consideration of defences based upon assertions of common law native title rights to fish, and hence involved an application of the common law principles governing the existence and recognition of native title rights in Mabo v Queensland (No 2).[16]Only Dillon v Davies involved an application of the provisions of the Native Title Act, and in particular s 211 (as informed by the definition of native title rights in s 233). However, as Underwood J explained in that case, these provisions of the Native Title Act relevantly reflect the common law as expounded in Mabo v Queensland (No 2), Mason v Tritton and Derschaw v Sutton.
[13] Mason v Tritton (1996) 34 NSWLR 572.
[14] Derschaw v Sutton (1996) 17 WAR 419.
[15] Dillon v Davies (1998) 8 Tas R 229; 145 FLR 111.
[16] Mabo v Queensland (No 2) (1992) 175 CLR 1.
The effect of these three decisions is, as Nicholson J held, to emphasise that in order to discharge his or her evidential burden, the defendant in a case such as the present must identify evidence capable of establishing more than that the relevant people or community have engaged in a particular activity. The evidence must be capable of establishing that the defendant is a member of a community of people who have traditionally exercised some form of right pursuant to a system of rules recognised by the common law, and that the defendant was exercising such a right on the occasion in question.
In the first of these decisions, Mason v Tritton, the defendant Aboriginal was charged with having more than the permitted quantity of abalone in his possession. At trial he was convicted, having argued unsuccessfully that he had a traditional right to fish in the relevant waters that was a native title right recognised at common law. The New South Wales Court of Appeal (Gleeson CJ, Kirby P and Priestley JA) dismissed the appeal.
Kirby P commenced his analysis by observing that whether in a particular case a claim for native title ought to be recognised must depend on the facts proved.[17] His Honour quoted from the reasons of Brennan J in Mabo v Queensland (No 2):[18]
Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty …
[17] Mason v Tritton (1996) 34 NSWLR 572 at 582.
[18] Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58.
After identifying the matters said by the various members of the High Court in Mabo v Queensland (No 2) to be relevant to the proof of native title, Kirby P summarised:[19]
If the exacting nature of the evidential burden established by Mabo were not immediately apparent to potential claimants before, this case has served to make clear the point. In order to establish a successful common law claim for native title of the kind asserted here, within the rules established by Mabo, the evidence must be sufficient to demonstrate:
(1)    that traditional laws and customs extending to the ‘right to fish’ were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory … ;
(2)    that the appellant is an indigenous person and is a biological descendant of that Aboriginal community;
(3)    that the appellant and the intermediate descendants had, subject to the general propositions outlined above, continued, uninterrupted, to observe the relevant traditional laws and customs; and
(4)    that the appellant’s activity or conduct in fishing for abalone was an exercise of those traditional laws and customs.
[19] Mason v Tritton (1996) 34 NSWLR 572 at 584.
Kirby P set out the trial judge’s reasons for rejecting the native title defence in that case:[20]
I am satisfied that the following facts have been established. Firstly, that the defendant is an Aboriginal and a descendent of the Mason family whose members have inhabited the south coast area of New South Wales since the 1880s and secondly that the Mason family, together with a number of other Aboriginal families have traditionally fished those coastal waters for abalone as a major source of food, however, in my view there is factual question which arises in this case, namely whether the defendant was in fact exercising a customary or traditional right on 9 October 1991 when he shucked and possessed 92 abalone. As I have already said the defendant did not give evidence before me as to the defendant’s intentions in relation to the subject abalone. In other words there is no evidence that the defendant either intended to consume the abalone himself or to make them available for consumption by the immediate members of his family or to exchange them for other food. Accordingly I am not satisfied that the defendant has established as a matter of fact that he was exercising a customary right to fish for abalone on 9 October 1991.
[20] Mason v Tritton (1996) 34 NSWLR 572 at 585.
Kirby P noted the trial judge’s finding that the defendant’s forebears, together with other communities, traditionally fished for abalone as a major source of food, but held that this did not provide the necessary fundamental factual basis for the native title right to the extent claimed by the defendant and required by the common law. In particular there was no evidence of a traditional and customary fishing right that extended to providing food for their community or to obtaining fish for the purposes of bartering.[21]
[21] Mason v Tritton (1996) 34 NSWLR 572 at 585.
Priestley JA also summarised, in a series of propositions, what the High Court in Mabo v Queensland (No 2) had said must be shown in order to establish the existence of native title. The second of these propositions, and hence a pre-requisite to the existence of a relevant native title right, is that the asserted right “must be a recognisable part of a system of rules observed by an identifiable group of people connected with a particular locality”.[22]
[22] Mason v Tritton (1996) 34 NSWLR 572 at 598, citing Mabo v Queensland (No 2) per Brennan J at 58, 70, Deane and Gaudron JJ at 89-90, 110 and Toohey J at 196, noting that while Toohey J (at 191) used the phrase “system of rules”, his Honour considered this synonymous with what Brennan J described as “traditional laws and customs” and Deane and Gaudron JJ referred to as the “local native system”.

For the reasons set out above, the issue does not arise as we have rejected the defendants’ submissions on both of the above issues. It would only arise if we were wrong about both of these issues. The difficulty with addressing this contingency in any meaningful way is that it requires a consideration of evidence in circumstances that assume some error of approach, or some mischaracterisation of the evidence. However, given the lack of clarity as to precisely what that error or mischaracterisation might be, we consider that this task would involve an inappropriate level of speculation. We would also be reluctant to embark upon that task in the context where the Magistrate’s consideration of the evidence was addressed to a different standard of proof.
We thus decline to express any conclusion about this aspect of the issues argued on appeal.
The sentence appeal
Having been found guilty of possession of abalone for the purposes of sale contrary to s 72(2)(c) of the Fisheries Act, the maximum penalty applicable for each of the defendants was, under s 72(2)(b)(i), a fine of $50,000 or imprisonment for four years.
The Magistrate sentenced each of the defendants to a term of six months’ imprisonment, which her Honour suspended in the case of Gregory Wanganeen and Phillip Dudley, but did not suspend in the case of the remaining three defendants (Edgar Wanganeen, Robin Wanganeen and Scott O’Loughlin). Her Honour made orders under s 100(1)(f)(i) of the Fisheries Act permanently prohibiting each of them from fishing for abalone. The Magistrate also noted that pursuant to s 110 of the Fisheries Act she was required to impose an additional pecuniary penalty in the amount of $24,952 on each of the defendants. However, the Magistrate then exercised her discretion under s 13 of the Criminal Law (Sentencing) Act 1988 (SA) to reduce the sum to $8,000 in the case of Gregory Wanganeen, Scott O’Loughlin and Phillip Dudley, and $5,000 in the case of Edgar Wanganeen and Robin Wanganeen.
The defendants appealed their sentences to Nicholson J. His Honour allowed the appeals on the ground the Magistrate fell into error in arriving at uniform head sentences for the defendants prior to considering their individual circumstances. Nicholson J proceeded to sentence the defendants afresh.
In sentencing the defendants afresh, Nicholson J noted that the Magistrate had conducted an Aboriginal sentencing conferencing pursuant to s 9C of the Criminal Law (Sentencing) Act 1988 (SA). The participants in that conference, while speaking to the good character of the defendants, also spent a significant proportion of the conference discussing the cultural importance to the Narungga people of fishing in the area. However, as the Magistrate observed, and Nicholson J upheld, sentencing must occur on the basis of the facts found by the Magistrate, and in particular on the basis that the abalone were taken not for cultural reasons but rather for the commercial purpose of sale.
In relation to the seriousness of the offending, Nicholson J accepted that the offence committed by each of the defendants was a serious offence, and hence one in which deterrence was required to play a prominent role. His Honour observed that the taking of 370 abalone (of which 188 were undersized) was a serious example of the offence. His Honour then added:[55]
The offence committed by the appellants is a serious offence for the reasons identified by the Magistrate and one which does require the deterrent aspect of sentencing to play a prominent role. Further, the taking of 370 abalone with 188 undersized when considered in isolation is to be seen as a serious example of this offence. However, and whilst the five appellants were jointly in possession of the abalone and liable on a joint criminal enterprise basis, the practical reality is that each appellant was likely to have the benefit of only 74 or so of the abalone. When viewed in this light, their culpability is reduced. This is not a case where the evidence would suggest that each appellant’s ability to collect abalone was enhanced by the five of them acting in concert. There no doubt were some benefits to be obtained by operating as a group but, in essence, the amount collected over any given period of time would be broadly proportional to the number of people involved in the collecting.
In other words, there is a misleading element to the characterisation of the offence committed as one involving each appellant being in possession of 370 abalone including 188 undersize.
[55] Dudley v Department of Primary Industries and Regions South Australia [2016] SASC 144 at [121]-[122].
Nicholson J also noted the Magistrate’s reference to the offending being deliberate. His Honour took the view that a deliberate flouting of the law might be inferred in the case of Scott O’Loughlin, given that he had previously committed a similar offence. But his Honour did not accept that there was an evidential basis for concluding that any of the other defendants had a sufficient understanding of the legislation (and its interaction with their perception of their native title rights) to imply a deliberate flouting of the law.[56]
[56] Dudley v Department of Primary Industries and Regions South Australia [2016] SASC 144 at [111].
Nicholson J also made reference to the absence of any expression of remorse from any of the defendants, as well as the relevance of the significant delay in the charges against the defendants being resolved.
Reference was made to the impact statement produced on behalf of the Minister in charge of the abalone fishing industry. It was to the effect that the industry was highly regulated and controlled, with a system in place which attempted to ensure the ongoing sustainability of the fishery. It was submitted that the illegal taking of abalone undermined the system aimed at the sustainability of the fishery, and also that poaching of fish was extremely difficult to detect. The latter, as his Honour accepted, was relevant to the need for deterrence.
Both the Magistrate and Nicholson J made reference to several decisions of general assistance in determining an appropriate sentence for offending in a case such as the present, although Nicholson J added that the wide range in penalties, and differing circumstances of the defendants in each, meant that they were ultimately of little assistance.
Nicholson J summarised the personal circumstances of each of the defendants.[57] It is not necessary for us to repeat his Honour’s summary, save to note, as his Honour did, that at the time of the offending all of them were young men (with Edgar Wanganeen being approximately 21 years of age, Robin Wanganeen approximately 18 years of age, Gregory Wanganeen approximately 24 years of age, Phillip Dudley approximately 26 years of age and Scott O’Loughlin approximately 21 years of age). Each had a criminal history, although varying in significance.
[57] Dudley v Department of Primary Industries and Regions South Australia [2016] SASC 144 at [127].
Nicholson J prefaced his pronouncement of sentences for each of the defendants with the following general observations:[58]
I take the view, having regard to the seriousness of the offending when considered in its full context and the personal circumstances of the various appellants and their prior criminal records, that both Phillip Dudley and Greg Wanganeen should be treated more leniently than the other three. Of the other three, I take the view that Robin Wanganeen should be treated more leniently than either Edgar Wanganeen or Scott O’Loughlin. I also take the view that a prison sentence is warranted in each case. However, there being no prosecution appeal, the maximum for any prison term imposed can be no higher than six months. In any event, I have already indicated that in the case of each appellant, apart from perhaps Scott O’Loughlin, six months is too high.
[58] Dudley v Department of Primary Industries and Regions South Australia [2016] SASC 144 at [129].
His Honour then proceeded to sentence Phillip Dudley and Gregory Wanganeen to three months imprisonment, Robin Wanganeen to four months imprisonment, Edgar Wanganeen to five months imprisonment and Scott O’Loughlin to six months imprisonment. His Honour suspended each of their sentences of imprisonment, and imposed the same pecuniary penalty for each as the Magistrate had under s 110 of the Fisheries Act.
Nicholson J imposed orders prohibiting Edgar Wanganeen from fishing for or gathering abalone for a period of five years, and Scott O’Loughlin for a period of 10 years. In the case of Phillip Dudley, Gregory Wanganeen and Robin Wanganeen, his Honour did not impose any prohibition. In relation to the first two of these men, Nicholson J explained:[59]
However, in my view, the further order prohibiting each of Phillip Dudley and Greg Wanganeen from fishing for abalone, permanently or otherwise, is not warranted in their case. The legislation, of which they are now only too well aware, already prohibits them from taking abalone in excess of the recreational limits unless they are properly authorised under the Fisheries Management Act. Their particular circumstances do not warrant imposing on them a permanent prohibition from fishing for abalone on a strict recreational basis or in the event that they were able to satisfy the authorities that they are entitled to an appropriate authority under the Act.
[59] Dudley v Department of Primary Industries and Regions South Australia [2016] SASC 144 at [132].
In respect of Robin Wanganeen, his Honour held that the same reasoning was applicable.[60]
[60] Dudley v Department of Primary Industries and Regions South Australia [2016] SASC 144 at [135].
The prosecution sought permission to appeal from the decision of Nicholson J in respect of his decision not to make orders prohibiting Phillip Dudley, Gregory Wanganeen and Robin Wanganeen from taking abalone for any period at all. No other aspect of the sentencing process was sought to be challenged on appeal. Nicholson J referred the question of permission to appeal against sentence to this Court.
Given the discretionary nature of the sentencing exercise, an appeal against sentence is, of course, subject to the principles of appellate restraint in House v The King.[61]
[61] House v The King (1936) 55 CLR 499 at 504-505.
The prosecution contended that Nicholson J erred in two respects.
The first suggested error, and ground of appeal, is that his Honour misdirected himself as to the proper characterisation of the nature and seriousness of the offending.
In this respect, the prosecution referred to the passage from Nicholson J’s reasons that we have set out earlier in which he observed that each of the defendants was likely to have had the benefit of only 74 or so of the abalone. The prosecution contended that to “begin by” dividing the haul by the number of participants tended to minimise the gravity of the offending. It was said that the correct approach would have been for his Honour to approach the matter on the basis that the offending was very serious because the defendants had each agreed to participate in a joint criminal enterprise which would see a very large amount of abalone unlawfully taken, and then jointly executed that plan in concert with one another. The prosecution also contended that whether or not one of the defendants acting alone could have taken 74 abalone must be open to doubt since they needed a car to get to the beach and went out fishing from a boat. Some person would have been needed to supervise the boat while the others were diving.
We reject this challenge to Nicholson J’s reasons. We do not consider that his Honour fell into error in his consideration of the nature and seriousness of the offence in the way described. His Honour described the offending as serious. He did not “begin by” dividing the haul. His Honour began by identifying the joint offending, and its seriousness and we do not think it can fairly be said that he lost sight of the significance of the overall joint offending. In referring to the divided haul, his Honour was merely elaborating upon the circumstances of the offending by reference to the likely gain or benefit each of the defendants stood to make. This was a legitimate and relevant consideration. Further, we do not consider anything turns on the prosecution qualification to his Honour’s observations as to the limited nature of the benefit from operating as a group as opposed to individuals.
Under this ground of appeal, the prosecution also challenged Nicholson J’s finding that there was no evidential basis for suggesting a deliberate flouting of the law by the defendants other than Scott O’Loughlin. The prosecution pointed out that it was never part of the defence case that the defendants thought they had a native title right to sell; that the case put (through the evidence of Gregory Wanganeen) was merely that the abalone were taken for sharing in the community. It follows from the Magistrate’s finding, on the balance of probabilities, that the defendants took the abalone for the purpose of sale that her Honour must have been satisfied that Gregory Wanganeen was lying. The prosecution further contended that it was implausible to suppose that there was no revelation by Scott O’Loughlin (who had previously been convicted of the same offence) to the others of the unlawfulness of their plan and their need to be careful to avoid detection. It was thus contended that Nicholson J erred in sentencing on the basis of a finding or assumption that four of the defendants did not deliberately flout the law.
There is some force in these prosecution submissions. At the same time, they also involve an element of speculation about the actions and thought processes of the defendants, particularly insofar as they are dependent upon what the other defendants were informed by Scott O’Loughlin. We are not satisfied that error has been established in this aspect of Nicholson J’s reasons.
The second suggested error, and ground of appeal, is that Nicholson J erred in failing to give due weight to the importance of making orders against the defendants to protect the resource in the public interest.
There can be no suggestion that Nicholson J overlooked the relevance of the need to protect the sustainability of the abalone fishery in the interests of the public. Indeed, as we have mentioned, Nicholson J expressly adverted to this consideration in the context of his reference to the impact statement produced on behalf of the responsible Minister. There is no reason to think that his Honour overlooked the relevance of this when it came to the aspect of the sentencing process concerned with a potential order prohibiting one or more of the defendants from taking abalone. To complain merely that “due weight” was not afforded to this consideration is not of itself a complaint of error in the sense required by House v The King.
To the extent that the complaint might have been advanced in support of, or as a particular of, a more general challenge based upon manifest inadequacy of the penalties imposed in the absence of orders prohibiting the defendants from fishing for abalone, we do not consider that this challenge can be sustained. It is not enough that the penalties – and in particular, the absence of prohibitions against fishing for abalone in the case of three of the defendants – might be seen as somewhat lenient, or that another judge might have been inclined to impose some period of prohibition if called upon to sentence the defendants afresh. It is sufficient to dispose of this ground of appeal to conclude, as we do, that it was within Nicholson J’s discretion to decline to impose any prohibition order in respect of the three defendants in question. His Honour did so only after careful consideration of the overall circumstances of the offending and the three defendants. No error has been established in his Honour’s reasoning or the sentences imposed.
For these reasons, we would decline permission to appeal the sentences imposed by Nicholson J upon Phillip Dudley, Gregory Wanganeen, and Robin Wanganeen – and in particular, Nicholson J’s decision to decline to make any order prohibiting them from taking abalone.
We do not consider it necessary in the circumstances to determine whether the exercise of the discretion to grant permission to appeal would have been subject to the principle in Everett v The Queen,[62] despite the non-custodial nature of the aspect of the sentence under challenge.[63]
[62] Everett v The Queen (1994) 181 CLR 295.
[63] Police v Cadd (1997) 69 SASR 150 at 159; Police v Watson (2016) 125 SASR 212 at [5]-[10].
Orders
For the above reasons, we would dismiss the defendants’ appeal against conviction. We would decline permission to appeal in respect of the prosecution’s appeal against sentence.