Lewis (Department of Primary Industries Fisheries) v Wanganeen & Harradine - [2005] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEWIS (DEPARTMENT OF PRIMARY INDUSTRIES - FISHERIES) v WANGANEEN & HARRADINE
Judgment of The Honourable Justice Bleby
28 January 2005
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
Appeal against finding of Magistrate of no case to answer - Complaint of breaches of Fisheries Act 1982 - Magistrate finds no case without hearing defendants - Whether Magistrate erred - Onus of proof on defendants - No justification for finding - Alternative grounds submitted on appeal by one defendant - Whether evidence of possession - Held case to answer - Matter remitted to Magistrate for hearing and determination according to law.
Fisheries Act 1982 (SA) s 5, s 23(1), s 44, s 59, s 67; Fisheries (General) Regulations 2000 (SA) reg 7, sch 6, sch 8; Native Title Act 1993 (Cth) s 211, s 223; Evidence Act 1929 (SA) s 37, referred to.
Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 16; Evans v Benson (1987) 46 SASR 317; Zanetti v Hill (1962) 108 CLR 433; R v Bilick and Starke (1984) 36 SASR 321; Spence v Demasi (1988) 48 SASR 538; He Kaw The v The Queen (1985) 157 CLR 523; R v Fien [1962] NSWR 134; R v Myall (1986) 43 SASR 258, applied.
Police v Dodd (2004) 88 SASR 130, not followed.
R v Prasad (1979) 23 SASR 161; Tepper v Di Francesco (1984) 38 SASR 256, discussed.

LEWIS (DEPARTMENT OF PRIMARY INDUSTRIES - FISHERIES) v WANGANEEN & HARRADINE
[2005] SASC 36
BLEBY J:
Background

The respondents, together with Trevour John Webb, were charged on complaint with two offences under s 44 of the Fisheries Act 1982 (“the Act”). The complaint came before a Magistrate. At the close of the prosecution case counsel for the respondent Harradine foreshadowed a submission of no case to answer, but did not indicate the grounds for that submission. Counsel for the respondent Wanganeen had earlier foreshadowed a defence based on an alleged inconsistency between relevant provisions of the Act and the Native Title Act 1993 (Cth) as it applied to the respondents, although there was no indication how the inconsistency was said to arise, and counsel foreshadowed an application for an adjournment at the close of the prosecution case to enable expert evidence to be called.
The Magistrate, on his own initiative and without hearing submissions from the respondents, found that there was no case to answer. He dismissed both charges against the respondents. The complainant, General Manager Fisheries Services, a Public Officer of Department of Primary Industries and Resources – Fisheries SA, appeals against that order. He seeks to have the dismissal of the charges set aside and the matter remitted to the Magistrates Court to be dealt with according to law.
When the appeal was called on for hearing, in answer to my inquiry, counsel for the respondent Harradine indicated that his intended submission of no case to answer was for reasons different from those given by the Magistrate and which had not been considered by him. It seemed appropriate that on the hearing of the appeal I should also hear argument on that additional submission by way of alternative contention in support of the Magistrate’s finding. No counsel objected to that course, and after adjourning the hearing to enable arguments to be prepared, I have now heard full argument on all grounds for and against a ruling of no case to answer, and will deal with those in due course.
Nature of the charges and the prosecution case
It was alleged by the complainant and, at the hearing of the complaint, was agreed by the respondents, that on 5 November 2002 there were seized from a vehicle occupied by the respondents and Mr Webb, 250 greenlip abalone, of which 64 were under the legal size prescribed under s 44 of the Act. The vehicle was stopped by police and fisheries officers on a dirt track leading from the beach in the Cape Elizabeth area of Yorke Peninsula. There was evidence that the beach was a well-known source of abalone. There was evidence of a conversation between a fisheries officer and the respondent Wanganeen from which it could be inferred that the abalone had been taken that day off the beach from which the vehicle emerged.
Section 44(2) and s 44(2aa) of the Act at the relevant time provided:
“(2)Subject to this section, if a person sells or purchases, or has possession or control of –
(a)fish taken in contravention of this Act; or
(ab) fish of a class declared to be protected for the purposes of section 42; or
(b) fish of a prescribed class,
the person is guilty of an offence.
(2aa)In proceedings for an offence against subsection (2), if it is proved that a person had more than the prescribed quantity of abalone in his or her possession or control, it will be presumed in the absence of proof to the contrary, that the person had that abalone in his or her possession or control for the purposes of sale.”
The first count with which the respondents were charged was a breach of s 44(2)(a) being in respect of fish taken in contravention of the Act.
Section 44(4) of the Act provides:
“(4)In proceedings for an offence against subsection (2)(a) relating to fish of a class prescribed for the purposes of this subsection, if it is   proved -
(a)    that the defendant was not –
(i)the holder of a licence authorising the taking of fish 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 fish of that class,
the offence is proved unless the defendant establishes the defence under subsection (3).”
Abalone is a class of fish prescribed for the purposes of subsection (4). The prescribed quantity of that fish is more than 25: see regulation 7(3) and schedule 8, Fisheries (General) Regulations 2000 (“the Regulations”). For the purposes of s 44(2aa), the prescribed quantity is 25: regulation 7(2) of the Regulations. It follows that if a person is found in possession of more than 25 abalone and it is proved that the person does not hold a licence authorising the taking of that fish and is not a registered fish processor, then the person is guilty of an offence under s 44(2)(a) of the Act unless the defendant establishes the defence under subsection (3). Furthermore, in the absence of proof to the contrary, it will be presumed that this abalone was in possession for the purposes of sale: s 44(2aa).
At the relevant time subsection (3) provided:
“(3)In proceedings for an offence against subsection (1) or (2), it is a defence if the defendant proves –
(a) (i) that the fish to which the proceedings relate –
(A)were purchased from a person whose ordinary business was the selling of such fish; and
(B)were purchased in the ordinary course of that business; or
(ii)that the defendant did not take the fish in contravention of this Act; and
(b) that the defendant did not know, and had no reason to believe, that the fish were, as the case may be –
(i)fish taken in waters to which this Act applies but not pursuant to a licence; or
(ii)fish taken in contravention of this Act; or
(iii)fish of a class declared to be protected for the purposes of section 42; or
(iv)fish of a prescribed class.”
It is to be noted that the onus is on the defendant to prove the defence under subsection (3).
The second charge alleged a breach of s 44(2)(b) of the Act. Regulation 7(1) of the Regulations provides that for the purpose of s 44(2) of the Act, undersize fish are fish of a prescribed class, and clause (3) of schedule 6 to the Regulations provides that greenlip abalone is undersize if taken in waters other than the Western Zone (a zone remote from where the abalone were seized), the meat, when removed from the shell, weighs less than 113 grams.
As I have mentioned, there was no dispute that on the relevant day officers of the Fisheries Department stopped a vehicle which was seen leaving the beach in the Cape Elizabeth area of Yorke Peninsula, that the vehicle was then occupied by the respondents and Mr Webb, and that in the vehicle there were found 250 greenlip abalone, of which 64 were undersize for the purpose of regulation 7(1) of the Regulations.
Section 59(1) of the Act provides that the Minister may, by notice published in the Gazette, exempt any person or class of persons from any specified provisions of the Act.
At all material times the Director of Fisheries for South Australia was William Fyfe Zacharin. There were tendered, as part of the prosecution case, certificates, purporting to be signed by Mr Zacharin, that on 5 November 2002 neither of the respondents nor Mr Webb was the holder of a ministerial exemption granted pursuant to s 59 of the Act, that none of them was the holder of a certificate of registration as a fish processor issued pursuant to Part IV Division 5 of the Act and that none of them was the holder of any fishery licence issued pursuant to Part IV Division 1 of the Act. In relation to such certificates s 67(1) relevantly provides:
“67.(1) In proceeding for an offence against this Act, an apparently genuine document purporting to be a certificate signed by the Director certifying –
(a)that a person named in the certificate was or was not at a specified time the holder of a specified authority;
…
is, in the absence of proof to the contrary, proof of the matters certified.”
“Authority” is defined in s 5 of the Act as meaning, “a licence, permit, registration or lease provided for by or under this Act”. Section 67 contains certain other evidentiary provisions as an aid to proof of allegations contained in a complaint. There is no need to refer to them for present purposes. Whether s 67 enables proof by that means that no exemption had been granted to the respondents by the Minister under s 59 of the Act may be an open question. Such an exemption must be published in the Gazette. Production of the Gazette is admissible as evidence of the exemption: s 37, Evidence Act 1929. If s 67 does not enable proof of non-exemption, it would seem that there is an evidential burden on a defendant to raise the issue if he or she asserts the benefit of an exemption. There was no suggestion in this case either that the respondents were entitled to the benefit of such an exemption or that the prosecution had failed to prove that they were not.
Besides relying upon the certificates from the Director and a statement of agreed facts, the prosecution relied on evidence from two Department of Fisheries officers who gave evidence concerning the stopping of the vehicle, searching it and seizing the abalone and of a conversation between them and the respondent, Wanganeen.
The Magistrate’s finding of no case to answer
In relation to the first count, I leave aside for the moment the question whether there was evidence before the Magistrate from which it could be concluded that the respondents and Mr Webb were in possession of a number of abalone in excess of the quantity prescribed under s 44(4). That was the subject of the second defendant’s alternative submission. For present purposes I will assume that there was sufficient evidence of possession of the abalone by both respondents. There was evidence that none of the defendants was the holder of a licence authorising the taking of abalone in the quantity found and that none of them was a registered fish processor. There was therefore evidence of a breach of s 44(2)(a) by the respondents.
In relation to count 2, again leaving aside for the moment the question of evidence of possession, the undersize greenlip abalone found were fish of a prescribed class for the purposes of s 44(2)(b) of the Act.
In respect of both counts there was a defence available to the respondents under s 44(3) of the Act. The onus was on each respondent to prove all the matters giving rise to that defence.
There was evidence before the Magistrate that fisheries officer Nesbitt, at the time of the seizure of the abalone, had a conversation with the respondent Wanganeen as follows:
“Wanganeen:    Does anyone have the number of Will Zacharin as I have spoken to him and he advised to call him if any Fisheries Officers give me a hard time.
Nesbitt:Sorry, there is no mobile phone comms in this area.
Wanganeen:     Make sure you write this down that I was hunting and gathering.
Nesbitt:You were found to be in possession of a large quantity of abalone. What was your reason for having them in your possession?
Wanganeen:     15 or so people took them. After we have finished can I have some of the abs back as I have to feed my family.
Nesbitt:That depends on how many you have in the bags once they have been counted.”
Officer Hanson also gave evidence of a conversation he had with the respondent Wanganeen. He said:
“Klynton (Wanganeen) asked if I knew Will Zacharin. I said I did. He informed me that he was allowed to take abalone. His words were, ‘I have spoken to him in the past. He said to ring us if possible. Ring us if trouble with fisheries to get you’s off our back’. I said, ‘Yes, I know Will Zacharin. You are more than free to contact him if you like’. From memory Klynton asked if he could use my phone. I said we didn’t have phone communications in the area … I said at that stage to Klynton Wanganeen to please include that about Will Zacharin when he’s asked questions …”
For the purpose of his reasons the Magistrate found that the respondent Wanganeen was speaking for himself and Harradine. There was no evidence that in those conversations Wanganeen was speaking other than for himself. This differs from a later conversation to which I refer below. If Wanganeen was only speaking for himself, the Magistrate’s finding, based as it was upon that evidence, could not apply to the respondent Harradine.
The Magistrate considered that the failure of the prosecution to call Mr Zacharin constituted a gap in the prosecution case. He seems to have taken the reported statement of the respondent Wanganeen as evidence of some permission to take fish in contravention of the Act, presumably giving rise to a possible defence under s 44(3). He considered that the prosecution, having had adequate notice of Mr Wanganeen’s claim of right to fish had the opportunity to adduce evidence as part of its case. The Magistrate considered that the failure to call Mr Zacharin was “fatal to the prosecution case as the Court cannot presume because of the statutory aids and the evidence … that there is just no substance to Mr Wanganeen’s statement to the fisheries officers”.
The Magistrate concluded:
“The court has credible evidence from the prosecution witness Hanson that he was told by Wanganeen that certain representations were allegedly made to the defendants that they rely upon. The prosecution has decided to rely solely on the statutory aids and not call Mr Zacharin or anyone else in authority to give evidence about any alleged statement either made to him or by him about the right of either defendant to take abalone in contravention of the Fisheries Act 1982.
I find on the evidence and the legal authorities quoted earlier that the prosecution should have called Mr Will Zacharin as part of its case and that this is a serious gap in the prosecution’s case. As the onus of proof rests with the prosecution and does not shift to the defendants, the prosecution has I find it within its power to call Will Zacharin as part of its case and did not do so. It is for all these reasons that I find no case to answer and dismiss the charge against both defendants.”
Whether the Magistrate erred
The Magistrate was plainly wrong in holding that no onus of proof shifted to the defendants. In relation to count 1, s 44(4) provides in effect that if the relevant matters specified in that subsection are proved the offence is proved “unless the defendant establishes the defence under subsection (3)”. Subsection (3) itself provides that it is a defence to either of these offences “if the defendant proves” the matters set out in subsection (3). Likewise, s 67(1) provides for proof of various matters by certificates signed by the director. The certificate will be proof of the matters certified “in the absence of proof to the contrary”.
In each of those cases this can only mean that there is an onus on the defendant to prove, on the balance of probabilities, the matters on which he relies by way of defence or that the state of facts is something other than that asserted in the relevant certificate. There is no obligation on the prosecution to disprove those matters.
Counsel for the respondent Wanganeen submitted that a defendant in that situation bears merely an evidential onus, with the ultimate persuasive onus remaining at all times on the prosecution. Counsel relied for that proposition on the decision of a judge of this Court in Police v Dodd (2004) 88 SASR 130 at 138-139. If Police v Dodd stands for the proposition asserted, it is not in accordance with decisions of the Full Court of this Court. It was established by the majority in Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 16 and confirmed by a majority of the Full Court in Evans v Benson (1987) 46 SASR 317 (King CJ, with whom Jacobs, Bollen and Olsson JJ agreed) that such expressions cast a persuasive onus of proof on the defendant to prove such facts on the balance of probabilities: see King CJ at 319, 323-324.
The test for determining whether there is a case to answer is well known. In Zanetti v Hill (1962) 108 CLR 433, Kitto J stated the test at 442:
“The question whether there is a case to answer, arising as it does at the end of the prosecution’s evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands, - whether, that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt.”
As King CJ said in R v Bilick and Starke (1984) 36 SASR 321 at 337:
“Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?”
Applying those tests, it was not for the Magistrate to determine that there was a serious gap in the prosecution’s case by failing to call Mr Zacharin. Having quoted the appropriate test stated by Kitto J in Zanetti v Hill, the Magistrate failed to apply it and to ask himself whether there was some evidence which, if accepted, would prove each element of the offence or which would enable its existence to be inferred.
In addition, the Magistrate seems to have misunderstood the use that could be made of the evidence of the conversation between the fisheries officers and Mr Wanganeen. The prosecution had an obligation to lead evidence of all conversations with the defendants, including self-serving statements made by them: Spence v Demasi (1988) 48 SASR 538 at 540. Cox J, with whom White and Perry JJ agreed on this aspect, conducted an exhaustive analysis of the cases relating to the admissibility and weight of self-serving statements when they are admitted as part of a whole conversation containing relevant admissions. He concluded, at 545-546:
“However the principle is to be stated, there is a longstanding practice of conceding evidential value to the self-serving parts of a mixed out of court statement and leaving it to the court to decide what weight they should have. Certainly the practice has not been uniform but the preponderance of authority, as it seems to me, supports the view taken by Gibbs J in the cases to which I have referred. The practice appears to be well settled in the criminal courts, and that is hardly surprising. It would be a strange thing to exclude the self-serving parts of a mixed statement by an accused person, because it was unsworn and untested, and then to allow him to make the same statement from the dock – and that was the procedure here until recently and still is the procedure in many places. Some of the decisions in favour of inclusion were made in summary prosecutions. However, few of the reported judgments on the subject discriminate between civil and criminal proceedings …
In my opinion, the appellant having tendered the whole of the police accident report, the self-serving parts of the respondent’s answers to the police were admissible in evidence, and of evidential significance, even when they went beyond an explanation of any admissions the answers contained. It was open to the respondent at the trial to rely upon them in support of his case that he had no recollection at all of the collision and little of events leading up to it. What weight, if any, was to be attributed to those out of court answers was entirely a matter for the judge.
The last statement, indeed, hardly admits of any debate. When a party’s unsupported out of course assertions are received in evidence, for whatever reason – and in the present case they went in by consent – plainly the court’s decision to reject them as worthless will not ordinarily be assailable. The tribunal of fact is generally entitled, in criminal or civil proceedings, to act on whatever amounts to a confession or admission and to reject the exculpatory parts: see Baildon v Walton (1847) 1 Ex 617; 154 ER 262; Herbert v Benson (1942) 44 SR (NSW) 382; State Government Insurance Office (Qld) v Saarinen [1967] QWN 23; Lopes v Taylor (1970) 44 ALJR 412.”

Therefore, while the Magistrate could act on the self-serving statements of Mr Wanganeen by way of exception to the rule against hearsay, in the absence of any other evidence on the topic, at the end of the case he would have been entitled to reject the evidence, and might well have done so. That was a decision to be taken at the close of the case when the questions for consideration would have been whether the prosecution had proved its case beyond reasonable doubt, and whether the defendants had established their defence on the balance of probability. Putting the prosecution’s evidence at its highest, at the time when the Magistrate ruled that there was no case to answer, it was possible that at the end of the case the self-serving statements of Mr Wanganeen would have been rejected as worthless. To give them any weight in considering whether there was a case to answer was to fail to consider the prosecution case from its strongest point of view.
However, one needs to go further. The self-serving parts of Mr Wanganeen’s statement in evidence at the close of the prosecution case could not amount to proof of a defence under s 44(3) or to disproof of any of the facts proved by the tender of certificates by the prosecution. None of the evidence negated any of the elements of the offence referred to in s 44(4) of the Act. If what Mr Wanganeen said were accepted as the truth and it were implied from that conversation that the director had given some form of permission to the defendants to take abalone, that did not constitute a defence under subsection (3). It was not evidence that the fish were not taken in contravention of the Act.
Section 59 of the Act provides that any exemption from the provisions of the Act is to be given by the Minister. Even assuming that the Minister had exercised his power of delegation under s 23(1) to the director to grant the exemption (and there was no evidence that he had) there was certainly no suggestion of any such exemption having been published in the Gazette such as would constitute an exemption under s 59(1).
It was argued before me that, the Magistrate having been made aware of the foreshadowed case that the defendants had a defence by virtue of the operation of the Native Title Act 1993 (Cth), the conversation was evidence in support of that and was entitled to be acted on by the Magistrate. Reference was made to s 211 of the Native Title Act which applies, among other things, if the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on hunting, fishing and gathering, and some other law prohibits or restricts persons from carrying on that class of activity other than in accordance with a licence, permit or other instrument granted or issued under the law. Subsection (2) prescribes that in those circumstances the law does not prohibit or restrict native titleholders from 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.
Subsection (2) also carries the following note:
Note: In carrying on the class of activity, … the native titleholders are subject to laws of general application.
It is clear that the evidence before the Magistrate fell far short of establishing rights under s 211 of the Native Title Act. Although it may have been assumed by the Magistrate and by counsel appearing before him that the respondents were aboriginal people, there was no evidence of that fact; there was no evidence of the nature of their native title rights and interests, a term defined in s 223 of the Native Title Act; there was no evidence that such a large quantity was for the purpose of satisfying their personal, domestic or non-commercial communal needs. Indeed, in the absence of proof to the contrary, the Magistrate was required to presume that the abalone was in the defendants’ possession for sale: s 44(2aa). There may well be other evidence which would be necessary to establish the protection afforded by s 211.
While evidence of the conversation may be relevant to establishing that defence, it fell far short of doing so, and did not, by itself, detract in any way from the evidence led by the prosecution which proved each element of the offence or which enabled its existence to be inferred. Whether or not the prosecution chose to call Mr Zacharin at that stage was irrelevant to the Magistrate’s proper consideration of the matters then before him.
Other possible defences were mentioned in the course of argument, namely claim of right and (although it was not clearly articulated), mistake of fact. If the defence is based on constitutional inconsistency, further evidence was needed to raise it. If it was based on some other lawful excuse, the onus was on the respondents under s 44(3) of the Act. In neither case was there sufficient to refute the case to answer proved by the prosecution. It was not sufficient merely to rely on the foreshadowed defence. Whether the nature of the defence, where evidence is led, will justify the calling of evidence in rebuttal is a decision to be made at the close of the defence case. But the prosecution is not required to negative any possible defence in its case where there is an evidentiary or persuasive burden of proof on the defendant.
The decision of the Magistrate was also sought to be justified by reference to the ability of the Magistrate, as the trier of fact, to decide that the evidence he had heard was insufficient to justify a conviction, and then to bring in a verdict of not guilty: cf R v Prasad (1979) 23 SASR 161; Tepper v Di Francesco (1984) 38 SASR 256.
However, that is not what the Magistrate purported to do. As can be seen form the cases cited above, by holding that there was no case to answer, the Magistrate was determining a question of law, namely that there was no evidence at all going to prove one or more of the elements of the charge. He was not purporting to act as the trier of fact and to dismiss the charges because the evidence for the prosecution was so unsatisfactory that it would be unsafe to convict upon it. If I am wrong and have misinterpreted what the Magistrate did or intended to do, and if indeed he was purporting to take the latter course, there was no justification for it.
It follows that, subject to a consideration of the evidence relating to possession, there was evidence on which the defendants could lawfully be convicted on the evidence as it stood. The Magistrate was wrong to find that there was no case to answer for the reasons that he gave.
The alternative submission
Counsel for the respondent Harradine submitted that, in respect of his client, the finding of no case to answer could be justified because there was no evidence of possession of the abalone on the part of his client. Counsel for the respondent Wanganeen made no such submission in respect of his client.
In order to establish possession of the abalone on the part of Mr Harradine, the prosecution must prove not only that he had physical control or custody of the abalone but that he had knowledge that the goods were in his custody: He Kaw The v The Queen (1985) 157 CLR 523.
I have already set out the relevant test which is to be applied in consideration of the submission of no case to answer. I will not repeat it.
It is necessary to elaborate a little on the evidence that was before the Magistrate. There was no evidence as to who was driving the car at the time it was stopped. There was no admissible evidence as to ownership of the car. One of the fisheries officers had seen Mr Harradine’s father driving the vehicle on previous occasions. The statement of agreed facts indicated that the search of the vehicle revealed a cardboard box containing a wet hessian bag and a second red coloured wet bag, both containing quantities of shucked greenlip abalone and that positioned on the rear seat, alongside the cardboard box, was a second wet hessian bag which also contained abalone meat. Oral evidence established that all the abalone had been shucked, or removed from the shells, and that they contained very little gut. Some had bits and pieces of weed and sand attached. They were not iced or being cooled in any way.
It was therefore established, on the prosecution case, that the three occupants of the car were accompanied by the abalone inside the cabin of the car. There was no concealment of the abalone in other parts of the vehicle. There was evidence that shucked abalone had a distinctive smell. It could be inferred both from a physical presence and location of the abalone in the vehicle and from the smell that all three men knew there was abalone present with them in the vehicle.
At the time of apprehension all three men were travelling in the vehicle together. They were heading away from Cape Elizabeth beach along a dirt track.
There was no evidence of any conversation between any of the police or fisheries officers and Mr Harradine. In addition to the conversation I have previously described between Mr Wanganeen and the fisheries officers, there was further evidence that when the three men returned to the car to leave, they drove off for a distance of about 20 m. The vehicle then reversed back to where the officers were standing. Wanganeen leaned out of the rear window on the driver’s side of the vehicle. Mr Hanson deposed to the following conversation:
“He said ‘What are you going to do with the abs? Are you going to give us our five abs back each?’. I said ‘Don’t worry, I’ll look after them’. He said ‘What about five abs back, can’t we have them?’. I said ‘Don’t worry, we’ll sort that out later’ and then I said ‘I thought you guys would keep ice on the abs’. Klynton then yelled out ‘I’m gonna sell them anyway’ as the car took off down the road.”
It is evident that the mere fact that a person is shown to have some association with property is not sufficient to prove possession of it: R v Fien [1962] NSWR 134; R v Myall (1986) 43 SASR 258. Up to the time when the vehicle first departed from the scene it might be said that, at its highest, there was only evidence of association on the part of Harradine. It was not shown who was driving or who owned the vehicle. There were no relevant admissions made by Harradine or by someone purporting to speak on his behalf. However, the reversing of the vehicle and the subsequent conversation with Wanganeen, who was not then driving the car, is evidence from which it could be inferred that the occupants of the car, not merely Wanganeen, decided to return for the purpose of having the second conversation deposed to by Mr Hanson. From that conversation it could be inferred that, when Wanganeen said, “Are you going to give us our five abs back each?” he was speaking with the apparent authority of the other two men in the car and speaking on their behalf, and that all the occupants of the car claimed some interest in the abalone seized.
There was therefore evidence which if it remained unchallenged, was evidence from which it was possible for the Magistrate to infer a joint enterprise and that all three occupants of the car were in possession of the abalone. In my opinion the alternative submission on behalf of the respondent Harradine fails.
Conclusion
It follows that the appeal must be allowed. The order dismissing the charges must be set aside and the matter remitted to the Magistrate to be dealt with according to law.