Heffernan v Ibell

Case [2016] QDC 154

DISTRICT COURT OF QUEENSLAND

CITATION:

Heffernan v Ibell [2016] QDC 154

PARTIES:

KEVIN JOHN HEFFERNAN
(Appellant)

v

ROBERT JAMES IBELL
(Respondent)

FILE NO:

D174 of 2015

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Townsville

DELIVERED ON:

17 June 2016

DELIVERED AT:

Townsville

HEARING DATE:

21 October 2015

JUDGE:

Durward SC, DCJ

ORDERS:

1 Appeal dismissed.

2 The convictions of the appellant in the Magistrates Court at Townsville on 12 May 2015 are confirmed.

3 I will hear the parties further as to costs.

CATCHWORDS:

LEGISLATION:              


 CASES:

ABORIGINES – CRIMINAL LIABILITY – UNLAWFUL USE OR POSSESSION OF FISHING APPARATUS – where appellant not an Aborigine and net fishing in prescribed waters – whether in that capacity he was acting under direction of an elder of family of Native Title Holder – whether entitled thereby to enjoy native Title rights and interests.

ABORIGINES – GENERAL – WHO ARE – ADOPTED MEMBER OF INDIGENOUS FAMILY – whether the appellant an aborigine - whether appellant an adopted member of the Juru People – whether appellant net fishing in prescribed waters – whether entitled to do so in that capacity.

CRIMINAL LAW – SUMMARY OFFENCES – PRIMARY INDUSTRY – FISHERIES – ABORIGINAL TRADITION – DEFENCE OF CLAIM OF RIGHT – where appellant fished with nets that were a ‘commercial fishing apparatus’, contrary to Fishing Regulations, in prescribed waters - whether defence of Claim of Right per section 22 Criminal Code (Qld) available – belief that the use or possession of fishing apparatus was authorised by a Native Title Holder – acting as agent of the Juru People family member.

STATUTES – STATUTORY CONSTRUCTION – NATIVE TITLE ACT – whether appellant a member of a class of persons exempted from the provisions of the Fisheries legislation in Queensland as an agent of or under the direction of a Native Title Holder – whether a person entitled to inclusion as Native Title Holder under Native Title Determination.

Justices Act 1886 sections 222, 223 and 225; Fisheries Act 1994 (Qld) sections 14(3) and 77A; Fisheries Regulation 2008 (Qld) sections 178(1) and 198(1); Native Title Act 1993 (Cth) sections 14, 211, 223, 224, 225 and 253; Criminal Code (Qld) sections 1, 22 and Part 6 (Offences relating to property and contracts); Acts Interpretation Act 1954 schedule 1.

Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819; Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736; Olsen v The Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580; Pearce v Paskov [1968] WAR 66; Walden v Hensler; Ex parte Hensler [1986] 2 Qd R 490; Stevenson v Yasso [2006] 2 Qd R 150; R v Pollard [1962] QWN 13; R v Waine [2006] 1 Qd R 458; R v Lawrence [1977] 86 A Crim R 412; R v Mill [2007] QCA 150; R v Dale [2012] QCA 303; Attorney-General of the Northern Territory v Ward [2003] (Full Court)…

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Details
AGLC
Heffernan v Ibell [2016] QDC 154
Case
[2016] QDC 154
Decision Date

CaseChat Overview and Summary

The appellant in this case, Heffernan, was convicted in the Magistrates Court at Townsville of possessing and using a fishing net in prescribed waters, in contravention of the Fishing Regulations. Heffernan appealed his convictions to the Queensland Court of Appeal, arguing that he was entitled to use the fishing net under native title rights, as he was acting under the direction of an elder of the Juru People, a family of Native Title Holders. The court had to determine whether Heffernan was an adopted member of the Juru People and if he was acting under the direction of a Native Title Holder when he was fishing. The court also needed to decide whether Heffernan could claim the defence of Claim of Right under section 22 of the Criminal Code (Qld).

The court found that Heffernan was not an adopted member of the Juru People and therefore was not entitled to the native title rights of that group. The court also held that Heffernan was not acting under the direction of a Native Title Holder when he was fishing, and therefore was not entitled to the native title rights of the Juru People. The court further held that Heffernan's belief that he was entitled to use the fishing net under native title rights did not amount to a Claim of Right under section 22 of the Criminal Code (Qld). The court concluded that Heffernan's convictions were properly obtained and dismissed his appeal.

The appeal was dismissed and the convictions of the appellant in the Magistrates Court at Townsville on 12 May 2015 were confirmed. The court will hear the parties further as to costs.

Orders

Orders of the court

1 Appeal dismissed.

2 The convictions of the appellant in the Magistrates Court at Townsville on 12 May 2015 are confirmed.

3 I will hear the parties further as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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