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Mueller v Vigilante

Mueller v Vigilante

Case [2007] WASC 259 1 November 2007

Claim of Right

Criminal Liability

Statutory Interpretation

Criminal Law

Type to search within this case.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mueller v Vigilante

Details

AGLC: Mueller v Vigilante [2007] WASC 259
Case: [2007] WASC 259
Decision Date: 1 NOVEMBER 2007

CaseChat Overview and Summary

The case of Mueller v Vigilante involved a dispute between the plaintiff, Mueller, and the defendant, Vigilante, regarding fishing rights in Western Australia. Mueller sought to enforce a claim of right to fish in waters that were subject to native title claims and the provisions of the Fish Resources Management Act 1994 (WA). The matter was heard in the Supreme Court of Western Australia, with the Court of Appeal subsequently reviewing the decision. The primary legal issues centred around the interpretation and application of the claim of right defence under section 22 of the Criminal Code (WA) and its availability to third parties, as well as the extent to which this defence could be invoked in relation to fishing rights under the Fish Resources Management Act 1994 (WA) and the Native Title Act 1993 (Cth).

The Court of Appeal meticulously examined the statutory language and legislative intent behind section 22 of the Criminal Code (WA), concluding that the claim of right defence was not available to third parties who were not the subject of the native title claim or the original legislation. The court found that the defence was intended to protect individuals who genuinely and reasonably believed they had a right to act as they did, based on existing legal frameworks. However, it was not designed to extend to third parties who were not directly implicated in the original legal context. Furthermore, the court determined that the Fish Resources Management Act 1994 (WA) and the Native Title Act 1993 (Cth) provided specific regulatory frameworks for fishing rights, which could not be overridden by a general claim of right.

Consequently, the Court of Appeal dismissed the appeal, upholding the lower court's decision that Mueller's claim of right was not valid under the circumstances presented. The court's reasoning emphasized the need to respect the statutory frameworks established for managing fishing rights and native title claims, ensuring that the defence of claim of right was not misapplied to circumvent these specific legal provisions. The final orders of the Court of Appeal were to dismiss the appeal, thereby affirming the lower court's judgment in favour of Vigilante.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Mueller v Vigilante [2007] WASC 259

Most Recent Citation

Heffernan v Ibell [2016] QDC 154

Cases citing this decision · 3 of 3 shown

Ball v Eric Child and Sons Pty Ltd
[2025] QDC 81 Para 6

…enson v Yasso where the offence under the Fisheries Act 1994 provided that “a person must not unlawfully… possess fishing apparatus”; Mueller v Vigilante (2007) 215 FLR 58 where s 45 of the Fish Resources Management Act 1994 (WA) provided that “a person must not have in the person’s possession any totally protected fish” (si…
Ahwang v Slatcher
[2021] QDC 40 Para 32

…he was exercising native title rights. His Honour thought the decision of Walden v Hensler might now not apply in light of the Native Title Act. [64][2007] WASC 259; 17 A Crim R 506 at [17].…
Heffernan v Ibell
[2016] QDC 154 Para 1

…applied Walden v Hensler, ex parte Hensler [1986] 2 Qd R 490 and referred to R v Waine [2006] 1 Qd R 458 [both discussed, infra], Mueller v Vigilante [2007] WASC 259, at [21] to [23] (possession of undersize crabs) and R v Jeffrey & Daley [2002] QCA 429 (robbery and an asserted entitlement to money stolen) [both a…

View all 3 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Pollard
[2023] NSWDC 36 Para 8

…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.…
Walsh v The Queen
[2010] HCATrans 124 Para 10

…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 appli…
Farah Constructions Pty Ltd v Say-Dee Pty Ltd
[2007] HCA 22 Para 11

…ainly 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].…
Stevenson v Yasso
[2006] QCA 40 Para 5

…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 th…
R v Waine
[2005] QCA 312

…) 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…
R v Jeffrey and Daley
[2002] QCA 429

…; 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…
R v Boden
[2002] QCA 164 Para 3

…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, f…
Molina v Zaknich
[2001] WASCA 337 Para 3

…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.…
Jones v Bartlett
[2000] HCA 56 Para 7

…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 '…
Wilkes v Johnsen
[1999] WASCA 74 Para 3

…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].…
Garcia v National Australia Bank Ltd
[1998] HCA 48 Para 7

…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…
Australian Securities Commission v Marlborough Gold Mines Ltd
[1993] HCA 15 Para 11

…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].…
Walden v Hensler
[1987] HCA 54 Para 2

…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…
Federation Insurance Ltd v Wasson
[1987] HCA 34 Para 7

…ng 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 opini…
Yerkey v Jones
[1939] HCA 3 Para 9

…pectfully 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 .…
[1968] 1 QB 166
[1968] 1 QB 166 Para 1

…hen 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…
174 ER 863
174 ER 863 Para 3

…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 h…
(1968) 1 QB 166
(1968) 1 QB 166 Para 5

…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 knif…

Legislation cited in this decision · 5

Fish Resources Management Act 1994 (WA)
45, 46 3 mentions (from Para 1)
Native Title Act 1993 (Cth)
211 2 mentions (from Para 1)
Fauna Conservation Act 1974 (Qld)
1 mention (from Para 7)
National Bank of Australasia Ltd v Scottish Union & National Insurance Co
2 1 mention (from Para 3)
Theft Act 1968 c.60
2 1 mention (from Para 3)