Mueller v Vigilante - [2007] WASC 259

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MUELLER -v- VIGILANTE [2007] WASC 259

CORAM: McKECHNIE J

HEARD: 17 OCTOBER 2007

DELIVERED : 1 NOVEMBER 2007

FILE NO/S: SJA 1064 of 2007

BETWEEN: LISA MUELLER
Appellant
AND
THOMAS JAMES VIGILANTE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE C P CRAWFORD
File No  :DY 607 of 2006

Catchwords:

Criminal law and procedure - Claim of right - Criminal Code (WA) s 22 - Whether available to third parties - Native Title Act 1993 (Cth) - Right to fish - Fish Resources Management Act 1994 (WA) - Extent to which claim of right applies

Legislation:

Criminal Code (WA), s 22
Fish Resources Management Act 1994 (WA), s 46
Native Title Act 1993 (Cth), s 211

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr C S Bydder
Respondent: Mr G M Irving

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Kimberley Land Council

Case(s) referred to in judgment(s):

Anderson v Nystrom (1941) St R Qd 56
Australian Securities Commission v Malborough Gold Mines Ltd (1993) 177 CLR 485
Farrah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; 236 ALR 209
Garcia v The National Australia Bank Ltd (1998) 194 CLR 395
Molina v Zaknich [2001] WASCA 337; 24 WAR 562
Olsen v Grain Sorgham Marketing Board; Ex parte Olsen (1962) Qd R 580
R v Boden (1844) 1 Car & Kir 396; 174 ER 863
R v Jeffery & Daley [2002] QCA 429; 136 A Crim R 7
R v Pollard (1962) QWN 13
R v Skivington (1968) 1 QB 166
R v Waine [2005] QCA 312; (2006) 1 Qd R 458
Stevenson v Yasso [2006] QCA 40; 2 Qd R 150
Walden v Hensler (1987) 163 CLR 561
Walsh v The Queen (1984) 2 Qd R 407
Wilkes v Johnson [1999] WASCA 74; 21 WAR 269
Yerkey v Jones (1939) 63 CLR 649

McKECHNIE J:

Introduction

This appeal raises the issue of honest claim of right under the Criminal Code (WA) (Code) s 22 and whether a person may not be criminally responsible for an offence by honestly claiming a right to property enjoyed by another.

The circumstances giving rise to the appeal

A person must not have in the person's possession any totally protected fish: Fish Resources Management Act 1994 (WA) s 45 (FRMA). The appellant is an officer with the Kimberley Land Council. He is not of Aboriginal descent. On 30 July 2006 the respondent decided to go fishing in his boat. He was accompanied by his brother and two Aboriginal boys aged 12 and 13. They were fishing for crabs and he and the boys had pots and bait. A number of crabs were caught and stored in the single esky aboard. The respondent was the driver of the boat. When, in due course, the fishers returned to the Derby boat ramp, Fisheries inspectors found 11 brown crabs in the esky, nine of which were less than the legal size of 120 mm. Most were about 100 mm. Undersized brown crabs are totally protected fish.

Proceedings at trial

The prosecution tendered a statement of agreed facts substantially as just set out. The only witness was the respondent who was not cross‑examined. The respondent gave evidence that he was a Senior Coastal Officer for the Kimberley Land Council and had worked in Kalumburu for four years. In that capacity he had undertaken a number of trips with traditional owner groups and often in a position where people were fishing and hunting according to custom. Referring to the boys' father he said:
I know that he has lived in Derby most of his life and he is a man that practises his lore and culture and that he - in my experience with him, he wouldn't fish in an area that's not his country.
He was asked about his intention:
MR IRVING: What was your intention on this day in respect of these crabs?‑‑‑Well, initially when there was only my brother and myself going fishing we were only intending to get legally sized crabs and then [the father] asked if his boys could come with us and they brought their own - some of their own equipment and it was at one point where we started pulling in the pots that his eldest son asked - there were some undersized crabs and I was going to throw them in and he asked whether he could keep them, and it was at that point that I considered that - with my understanding of the lore and their customary rights I said, 'Okay, well, I guess that's within your rights to keep those crabs' so it was at that point that the decision was made to allow them to be in the esky.
As far as you are concerned though, what is the position of the KLC as distinct from what the fisheries officers were putting to you?‑‑‑My understanding - my opinion of it is that Aboriginal people's practices to hunt and fish are determined by their customs under the Native Title Act and that includes sustainability matters, whereas things like size limits and bag limits are not a traditional factor. They are something that is being imposed on them by the legislation and so it is inconsistent with the Native Title Act.
The defence raised three matters before the magistrate. It was submitted that the respondent was not in possession of the undersized crabs because he did not intend to fish for undersized crabs; in effect, the boys were in possession of the undersized crabs. Alternatively, the respondent submitted that the prosecution had not excluded that he was acting under an honest claim of right. Alternatively to that defence, the respondent submitted that he was relying on an honest and reasonable but mistaken belief that the boys were exercising a customary right. The magistrate rejected any defence under s 24. No cross‑appeal is brought against that decision which is, in any event, plainly right.
The magistrate found that the respondent was in possession of totally protected fish. No cross‑appeal is brought against that finding although it will be necessary to further analyse the finding and the facts. The magistrate could not exclude the possibility that the respondent was acting under an honest claim of right and therefore dismissed the prosecution. It is from that dismissal that the prosecution now brings this appeal.
The findings of fact are not challenged on appeal but the conclusion of law is.
Two issues arise for consideration:
1.Is a claim for possession of the crabs, as part of traditional rights, a claim of right in respect of property?
2.If it is a claim of right in respect of property, can the respondent take the benefit of that claim?

Possession

The FRMA defines possession:
'possession' includes having under control in any place, whether for the use or benefit of the person in relation to whom the term is used or another person, and whether or not another person has the actual possession or custody of the thing in question. (s 4)
The magistrate found:
On the evidence I am satisfied and find that the accused organized the fishing trip in order to take his brother out fishing for crabs, that the vessel used was one in which the accused had a half share, that he took 6 pots for the purpose. Further that he took the sons of his friend and they too brought pots for the fishing expedition. I find there was one esky used and all crabs caught were put in that container. I find that the accused knew that undersized crabs had been caught and one of the boys asked his permission to retain them. I accept that the catch had not been divided before the Fisheries Officers inspected the boat. Whether or not the undersized crabs were to be retained by the boys or shared with the accused is irrelevant. The accused was, as he admitted, in charge and he gave permission for the undersized crabs to be retained. Thus, even if those crabs were for the use or benefit of the boys, the accused was in control of the vessel as is evident from him organizing the trip, it being, for practical purposes on that trip, his boat; further, he did most of the 'driving' as he called it, he threw or caused to be thrown back the 'really small' crabs and, indeed, from the fact of being asked by the boys whether they could retain the undersized crabs. I find that the accused was in control of the boat and in possession of the mud crabs. (11)

Honest claim of right

The Code provides:
Ignorance of law, honest claim of right
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud. (s 22)

Is a claim for possession of the crabs part of a traditional right?

The possession of the crabs by the Aboriginal boys can be analysed in a number of ways. On one analysis, no claim of right arises because, having regard to the Native Title Act 1993 (Cth) s 211, there are no conduct elements of a criminal offence in respect of the FRMA s 46. The respondent has no claim which can be attached, so to speak, to the boys' claim of right. The claim of right to the undersized crabs arises, in the case of the boys, from the fact that they caught the crabs. By the act of catching, the crabs became their property. Because s 46 of the FRMA is inapplicable, they commit no offence in possessing the crabs. On this analysis, if the respondent thought they may have a claim of right to the possession of the crabs arising under the Native Title Act, he has made a mistake of law under Code s 22 first paragraph, which does not provide a criminal excuse. His possession of the crabs is therefore without an excuse.
On another view, prima facie, all persons were in possession of totally prohibited fish. The conduct elements of an offence under the FRMA s 46 were made out. However, the boys could mount a claim of right to possess the fish on the basis that they were satisfying their personal, domestic, or non‑commercial communal needs in the exercise or enjoyment of their native title rights and interests. The right or interest being claimed is the native title right preserved by the Native Title Act s 211.
This analysis is correct. An Aboriginal person does not have an unfettered immunity from the FRMA s 46. There must be some evidence that they were satisfying personal, domestic, or non‑commercial needs and; further, that they were doing so in exercise or enjoyment of native title rights or interests. It is necessary, on this analysis, for the Aboriginal person claiming the right to, in fact, assert the right. The right is not created by statute - the Native Title Act s 211 preserves traditional rights in some circumstances. The rights existed before the statute. The Native Title Act does not diminish the right. It removes Commonwealth and state prohibitions in the exercise of the right in circumstances specified in s 211. Because these circumstances are specified, an Aboriginal person seeking to establish that state law, such as FRMA, is inapplicable to them, must bring themselves within s 211(2). So much is consistent with Wilkes v Johnson [1999] WASCA 74; 21 WAR 269 at [105].
I hold that on the facts the boys could mount a claim of traditional rights with respect to fishing.

Is the right to possess crabs a right in respect of property?

The next question, which is a subsidiary question, is whether the right extends to a claim in respect of property under Code s 22.
Walden v Hensler (1987) 163 CLR 561 was decided when there was no statutory entrenchment of native title rights as now appears in the Native Title Act s 211. Although it remains an authority on the Code s 22, having regard to the Native Title Act s 211, any principle that may be extracted from Walden v Hensler to the effect that a traditional right may not be a right under Code s 22 can now be doubted.
In Molina v Zaknich [2001] WASCA 337; 24 WAR 562, the court held that Code s 22 should be given its literal and broad effect and may be raised in relation to offences not contained in the Code. It also applies to a claim of right arising under a statute as well as at common law.
I interpose to note that the claim of right asserted in the present case is at least a claim under statute, although it is better understood as a traditional right to property which is created through the activity of fishing. A right to fish must necessarily cover a right to property produced by the activity of fishing. Also the concept of possession generally, and the definition of 'Possession' in FRMA s 4 specifically, is the control or custody of a thing. A thing in law is anything that may be the subject of a property right.
Molina v Zaknich was considered in Stevenson v Yasso [2006] QCA 40; 2 Qd R 150. Yasso was charged with unlawfully possessing commercial fishing apparatus while not the holder of an authority under the Fisheries Act s 84(1). McMurdo P analysed Walden v Hensler and Molina v Zaknich concluding:
All this suggests that whilst the law as to the operation of s 22 Criminal Code may not be entirely settled, the issue of Mr Yasso's entitlement to possess the net in the exercise of an honest claim of right under s 22 Criminal Code was raised on the evidence. It must follow from the magistrate's conclusion that Mr Yasso was acting in the traditional way of an Aborigine in his possession of the net, that the magistrate was also satisfied that the prosecution had not disproved beyond reasonable doubt that Mr Yasso was in possession of the net whilst acting under an honest claim of right by way of Aboriginal tradition under s 14 of the Act. That conclusion also supports the orders I propose. [58], [64] ‑ [67]
Fryberg J expressly declined to consider the Code s 22.
McPherson JA disagreed with McMurdo P. He said:
The offence of possessing such a net is constituted quite independently of any element of catching fish with it. It would, as I have said, have been committed if Mr Yasso had never caught fish with the net, but had simply kept it at home and never used it at all. It follows that the fact that he believed he was entitled to use it in catching fish, whether or not under Aboriginal tradition, cannot under s 22(2) of the Code excuse his possession of it. In relying on s 22(2), Mr Yasso was claiming a right that was not an answer to the charge of possessing the net in breach of the statutory prohibition.
Some reliance has been placed by the President in her reasons on the decision of the Full Court of Western Australia in Molina v Zaknich (2001) 24 WAR 562, in determining the ratio decidendi of the High Court in Walden v Hensler (1987) 163 CLR 561. In doing so, their Honours arrived at a ratio by combining the reasons of the two minority dissenting Justices, who were Toohey and Gaudron JJ, with those of Deane J, who was one of the majority consisting of Brennan CJ, Dawson J and Deane J. With great respect, this is, I think, not a legitimate course to follow. In Federation Insurance Ltd v Wasson (1987) 163 CLR 303, 314, Mason CJ, Wilson, Dawson and Toohey JJ agreed in saying:
Certainly, it would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment.
And in Garcia v National Australia Bank Ltd (1998) 194 CLR 395, 417, Kirby J said 'the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be'. I know that in Jones v Bartlett (2000) 205 CLR 166, 225, Gummow and Hayne JJ have since said that, where a binding authority cannot be extracted from the majority judgment, a dissenting judgment may 'deserve respectful consideration'. But in Walden v Hensler, the majority was unanimous in deciding, unlike the minority, that s 22(2) afforded the appellant with no ground of exemption or exculpation in respect of the offence he had committed under s 54(1)(a) of the Fauna Conservation Act 1974 of taking or keeping fauna. Their conclusion that, as a matter of sentencing discretion under s 657A of the Code, the conviction should not be recorded did not affect their decision that it should stand as a conviction according to law.
I do not consider, however, that the decision or the reasoning in Molina v Zaknich (2001) 24 WAR 562 calls for a different result to be reached in the present case. In my opinion the offence under the Act and Regulations of possessing a prescribed net was proved against Mr Yasso beyond reasonable doubt. It was not an offence of taking or keeping fish. The fact that he was under s 14(1) of the Act entitled to 'take' or catch fish under Aboriginal tradition afforded him with no answer to the charge laid in the complaint. [102] ‑ [104]
With great respect, McPherson JA seems to have missed the point. Sometimes the Justices of the High Court reason in different ways to reach a conclusion. It may be necessary to analyse the reasoning to discern whether there is a common statement of principle. In Walden v Hensler a common statement of principle as to the construction of Code s 22 does emerge even though the Justices differed in the application of that principle to the facts in the case.
McPherson JA sought support from the judgment of Kirby J in Garcia v The National Australia Bank Ltd (1998) 194 CLR 395 at 417. However, it may be respectfully contended that Kirby J was in fact alone in expressing his view which led him to a rejection of the statements of Dixon J in Yerkey v Jones (1939) 63 CLR 649. The other members of the court accepted the principle in Yerkey v Jones.
While I consider that the analysis of McMurdo P would compel the conclusion in this case that the claim of right was a claim able to be advanced under s 22 of the Code, it must be acknowledged that her judgment is not a binding judgment of the Court of Appeal as neither of the other judges adopted it. I use it therefore for its persuasive value, preferring it, as I do, to that of McPherson JA.
I hold that possession of the crabs by an Aboriginal person in the facts of this case constitutes a claim of right in respect of property.

Can the respondent take the benefit of that claim?

As a matter of general principle, and without regard to authority, I would have thought that the Code s 22 is wide enough to encompass a person acting on behalf of another person in respect of property, or authorised by another person to act on their behalf in respect of property, pursuant to a claim of right. It is not difficult to imagine situations where a person, in pursuing a claim of right, seeks the assistance of others. There is no reason why the principal might escape criminal responsibility for pursuing an honest claim of right but the person aiding the principal would be criminally liable.
There are few decided cases on claims advanced by an aider to a person exercising a claim of right. Those cases tend to support a general principle that an aider might come under the umbrella of an honest claim of right.
In R v Boden (1844) 1 Car & Kir 396; 174 ER 863 the facts were:
It appeared that the father of the prosecutor had been at a fair at Congleton some days before the day of the alleged offence charged in the present indictment, and that a person had there come up to him and given him eleven sovereigns into his hand, for the purpose of buying a horse, and that the prosecutor's father had put the money into his pocket, and refused to give it back. The person who gave him the money followed him to an entry in the town of Congleton, and there, in company with the prisoner, assaulted him, and endeavoured to get the money out of his (the father's) pocket. The prosecutor came up and interfered; and on his saying that the person who had given his father the money was the man that had robbed Cotterell at Leek fair, that person ran away. It further appeared, that the prisoner called at the prosecutor's father's house the next morning, and demanded the eleven sovereigns, but the prosecutor's father refused to give them him, at the same time saying, that he would give the money to the man from whom he had received it, if he would come and ask for it. It was proved, that, at Leek fair, on the 27th of December, 1843, the prisoner saw the prosecutor receive seven sovereigns for a cow that he had sold, and followed the prosecutor, and said, 'Pay me the eleven sovereigns you owe me'; and then knocked the prosecutor down, and put his hand into the pocket of the prosecutor, where he had seen the sovereigns placed, but was prevented from getting them, and the parties separated. (396, 396)

Parke B said:
I think that there was too much semblance of a right to claim the sovereigns, to justify our proceeding with the case for the felony; but there remains the assault. (397)
This case may reflect the common law but it is hardly a considered judgment and by itself is of limited authority.
It no longer reflects the common law of the United Kingdom (at least so far as property offences are concerned) which was altered by the Theft Act 1968 (UK) s 2 which relevantly provides:
1.A person's appropriation of property belonging to another is not to be regarded as dishonest:
(a)If he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
The Theft Act would, on its face, appear to extend a claim of right to cover a person acting pursuant to a claim of right on behalf of a third person.
In R v Skivington (1968) 1 QB 166, the defendant had gone to the offices of the company which employed both he and his wife. The defendant said that his wife had given him a letter addressed to the employer authorising him to collect her wages. His conviction for robbery, when he threatened an employee with a knife before the wage packets were handed over, was quashed on the basis that a claim a right exists when every man honestly believes that he has a lawful claim, even though it may be completely unfounded in law or in fact.
The cases at common law provide only limited assistance even though they do support availability of the principle to aiders. In Anderson v Nystrom (1941) St R Qd 56 at 56 Philp J said:
No doubt the common law and the Queensland law are very similar, but there are differences; for example, by s 22 of the Code an honest claim of right relieves from criminal responsibility in respect only of an offence relating to property, whereas in England the relief apparently is not so confined. See R v Tinkler (1859) 1 F&F 513175 EngR 832, where Coburn CJ held that this rule applied to the taking of a child out of custody under an honest belief of right so to do. (69)
There are a number of Code authorities which are relevant and binding. However, some caution needs to be given to statements in cases such as Pollard where the issue is the claim of right of the accused who is directly exercising the claim because those cases do not consider the position of an aider or, as in this case, co‑possessor.
In R v Pollard (1962) QWN 13 Gibbs J (Stanley and Hanger JJ agreeing) said:
An accused person acts in the exercise of an honest claim of right if he honestly believes himself to be entitled to do what he is doing.
That apparently wide expression was explained shortly thereafter in Olsen v Grain Sorgham Marketing Board; Ex parte Olsen (1962) Qd R 580 per Mansfield CJ at 585 where he denied that the proposition was of general application. Hanger J (who had agreed with Gibbs J in Pollard) said:
But that the passage must be read in its context and the sentence immediately following denies the correctness of the appellant's contention 'a belief that he may acquire a right in the future is not in itself enough'. This surely affirms the idea, at least by implication, that there must exist a belief in the existence of a present right.
Part of the caution which must be exercised in dealing with cases on Code s 22 is provided by Walsh v The Queen (1984) 2 Qd R 407. The appellant was charged with killing an ox. He was the owner of land on which avocado trees were growing and cattle kept straying onto his property. The question arose whether Code s 22 applied. Kneipp J, with whom Kelly and Carter JJ agreed, said:
In my opinion that is not the sort of right to which the provision refers. In my view the provision refers to a right relating to the property to which the charge relates: a right which if it existed would be, to adopt language used by Mansfield CJ in Olsen & Anor v The Grain Marketing Board; Ex p Olsen (1962) QdR 580 at 585, a right in or to that property which would be peculiar to the person asserting the right. The most usual and simplest application of the provision is the case where the person does some act in relation to property in the honest but mistaken belief that he is the owner of it. (408)
There are two cases from Queensland that are more or less directly on point. Each is a decision of the Court of Appeal on a provision of the Code, that is, in this respect, identical. I am bound by those decisions unless convinced that the interpretation is plainly wrong: Australian Securities Commission v Malborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Farrah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; 236 ALR 209 at [135].

R v Waine [2005] QCA 312; (2006) 1 Qd R 458

Keane JA (McMurdo P and Wilson J agreeing) said:
What is important is the honest belief that one is legally entitled to do to the property that which one is doing. That belief as to entitlement may come equally from the consent of the owner, or from a person believed to be the owner, as well as from a mistaken belief as to one's own title
In this case, the appellant was acting as the agent of Mr Sempf. If Mr Sempf can assert an honest claim of right to deal with the property, so, in my view, may the agent who believes she is authorised by him to do what he might do. It was submitted on behalf of the respondent that only a claimant to a beneficial interest in property in that claimant may raise a defence under s. 22(2) of the Criminal Code. But the language of s. 22(2) does not suggest that the defence which it affords can or should be read down in this way; and to read the language of s. 22(2) as if it were so confined would be inconsistent with the liberal construction of the provision supported by R v Jeffrey & Daley. [25], [29]

R v Jeffery & Daley [2002] QCA 429; 136 A Crim R 7

The accused were charged with robbery. One accused alleged that he took money believing it to be an entitlement of the other accused's compensation. Jerrard JA (McMurdo P and Atkinson J agreeing) said:
Despite the understandable doubts of the learned trial judge, I consider that that claimed belief did raise for consideration by the jury a defence pursuant to s 22 of the Criminal Code. S 22(2) relevantly provides that:
'A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.'
The appellant Daley took possession of and carried away the amount of $300.00, and now claims to have believed then to an entitlement, apparently as of a right, in Ms Jeffrey to compensation. As it is the Crown case that the appellants were acting together in taking money from Mr Wilkins, the appellant Daley must be entitled to the protection of any honest belief he had then as to Ms Jeffrey’s right to monetary damages as compensation for the physical damage to her vehicle, and right to money from Mr Wilkins as that compensation.
While Mr Daley’s claimed belief must be honestly held to raise a defence under s 22, it does not matter if the right asserted by the belief is one which is unfounded in law or fact. An honestly held belief in a claim of right in Ms Jeffrey, whom he was assisting, to at least as much money as Mr Wilkins then had on him, although unfounded or unreasonable, would relieve Mr Daley from criminal responsibility for taking that money from Mr Wilkins' possession with intent to permanently deprive him of it. The lack of criminal responsibility for the element of stealing, which is an essential part of the offence of robbery, would mean he could not be held criminally responsible for that more serious offence. This would not relieve him of criminal liability for the serious assault the jury necessarily found he committed at that time.
The judgment of Macrossan J (as he then was) in R v Williams observed at page 295 line 32 that there seems to be no reason to doubt the correctness of the decision in R v Skivington [1968] 1 QB 166, in which was held that on a charge of robbery with aggravation, an honest belief by the accused person of his entitlement to the money in question, was enough to raise the defence of honest claim of right. This was because it was not necessary for the accused also to believe that he was entitled to take the money in the way that he did. Those observations of Macrossan J, with which I respectfully agree, apply in the instant case. A claimed belief under s 22 might save Mr Daley from a conviction for robbery, but not for assault occasioning bodily harm. The latter offence is not one relating to property. [22], [23], [24]

Resolution of the present case

I hold that Code s 22 may apply in circumstances where the claimant is acting pursuant to a claim of right held by another person. In the present case, although there was no occasion for them to formally exercise it, the boys, by reason of their status as Aborigines, had a claim of right to the undersized crabs that were in the possession of the respondent. They were entitled to possession. The respondent's possession of the undersized crabs was no more than an incident of the possession of the persons who had a claim of right to possess.
The magistrate held:
What makes this case more difficult is the expanded definition of possession in the FRMA. I accept and find that the accused allowed the boys to retain the undersized crabs, which were placed in the esky pending arrival at shore when the boys would take them home. That was done in the honestly held belief that they were entitled to fish for the crabs, irrespective of size, according to traditional law and custom. Alternatively, the accused failed to return the undersized crabs to the river on the basis of the said belief. The latter alternative would constitute an omission in terms of s22 and goes to possession in the sense of the accused's control over the fish in the esky.
The accused's joint possession, in terms of s4 FRMA was thus in the exercise of an honestly held belief in the right, or entitlement, of the boys to fish for crabs, irrespective of their size. [21], [22]

Conclusion

I am of opinion that a claim by an Aboriginal person in the circumstances arising in this case is a claim of right with respect to any property within the meaning of the Code s 22. I am further of opinion that as such a claim is able to be advanced by the respondent in this case by reason of the nature of possession of the undersized crabs, notwithstanding that he is not the primary beneficiary of a claim of right.
The magistrate was correct. The appeal is dismissed.