Sabatino v Slatcher - [2020] QDC 308

DISTRICT COURT OF QUEENSLAND

CITATION:

Sabatino & Anor v Slatcher [2020] QDC 308

PARTIES:

PATRICK JOHN SABATINO

(first appellant)

and

JAFFA GODFREY AHWANG

(second appellant)

v
MATTHEW JOSEPH SLATCHER

(respondent)

FILE NO:

84/2019 and 85/2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Mackay

DELIVERED ON:

3 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2020

JUDGE:

Richards DCJ

ORDER:

The application to adduce fresh evidence is denied.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – where the appellants were found guilty of an offence under s 88(2) of the Nature Conservation Act 1992 and fined $2,000 – where the men are from the Torres Strait Island – where the men had been fishing and took a turtle for a wedding in accordance with traditional and customary methods of hunting – where the men do not have Native Title over the area – where the appellants seek to agitate whether they had an honest claim of right – where the appellants seek to adduce fresh evidence to establish an honest claim of right – whether the justice of the case calls for the admission of fresh evidence – where the appellants were unable to present evidence properly due to being unrepresented at the initial hearing – whether an application to adduce fresh evidence should be allowed

LEGISLATION:

s 88(2) of the Nature Conservation Act 1992

s 223(2) of the Justices Act 1886

CASES:

Akiba on behalf of the Torres Strait Islands of the Regional Seas Claim Group v The State of Queensland No 2 [2010] SCA 643

Gallagher v R (1986) 160 CLR 392

Native Title Act 1993 (Cth)

Powell v Chief Executive Officer of Customs [2012] QCA 338

COUNSEL:
M Duncan for the applicant

Benedict J Power for the respondent

SOLICITORS:
Torres Strait Island Counsel for the applicant

Litigation Branch of the Department of Environment and Science for the respondent

Introduction

On 10 September 2019, the appellants were found guilty of an offence under s 88(2) of the Nature Conservation Act 1992 and fined $2,000. That Act provides:
“A person must not take a protected animal unless the person is an authorised person or the taking is authorised under this Act.”
The two men had been fishing at Murray Creek Bay on 16 April 2017 and took a turtle for a wedding in accordance with traditional and customary methods of hunting which they had exercised themselves in that area for over 40 years. They are men who hail from the Torres Strait Islands. It is conceded that they do not have native title over the area. Title is held by the Yuwibara people. They do however seek to agitate whether they had an honest claim of right and to do that they seek to lead fresh evidence from the two appellants, Malawap Nona and Dr Philip Clark.
The evidence sought to be led is as follows:
Malawap Nona
Malawap Nona is the chairperson of Malu Lamar,…

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 Sabatino v Slatcher

Details

AGLC: Sabatino v Slatcher [2020] QDC 308
Case: [2020] QDC 308
Decision Date: 3 December 2020

CaseChat Overview and Summary

In the case of Sabatino v Slatcher, the appellants, who are from the Torres Strait Islands, appealed against their conviction for an offence under section 88(2) of the Nature Conservation Act 1992. The appellants had been found guilty and fined $2,000 for taking a turtle in accordance with their traditional and customary methods of hunting for a wedding. They did not hold Native Title over the area in question. The appellants sought to argue that they had an honest claim of right and wished to present fresh evidence to support this contention. They also argued that they were unable to present evidence properly at the initial hearing due to being unrepresented. The court was tasked with deciding whether the justice of the case required the admission of fresh evidence and whether the application to present such evidence should be allowed.

The legal issues before the court involved the assessment of whether the justice of the case necessitated the consideration of fresh evidence and the circumstances under which such evidence could be admitted. The court needed to examine whether the appellants' lack of representation at the initial hearing prejudiced their ability to present their case effectively. Furthermore, the court had to consider whether the proposed fresh evidence would sufficiently alter the outcome of the case to warrant a reconsideration of the conviction.

The court found that the justice of the case did not require the admission of fresh evidence. It held that the appellants' lack of representation did not prejudice their case as the fresh evidence they sought to present would not have made a significant difference to the outcome. The court emphasised that the primary consideration was whether the fresh evidence could alter the result of the case. In this instance, the court concluded that it could not. Therefore, the application to adduce fresh evidence was denied, and the conviction remained in place.

The final orders of the court were that the application to present fresh evidence was denied. The appellants' conviction and fine remained unchanged.

Orders

Orders of the court

The application to adduce fresh evidence is denied.

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.

CITATION:	Sabatino & Anor v Slatcher [2020] QDC 308
PARTIES:	PATRICK JOHN SABATINO (first appellant) and JAFFA GODFREY AHWANG (second appellant) v MATTHEW JOSEPH SLATCHER (respondent)
FILE NO:	84/2019 and 85/2019
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Mackay
DELIVERED ON:	3 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2020
JUDGE:	Richards DCJ
ORDER:	The application to adduce fresh evidence is denied.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – where the appellants were found guilty of an offence under s 88(2) of the Nature Conservation Act 1992 and fined $2,000 – where the men are from the Torres Strait Island – where the men had been fishing and took a turtle for a wedding in accordance with traditional and customary methods of hunting – where the men do not have Native Title over the area – where the appellants seek to agitate whether they had an honest claim of right – where the appellants seek to adduce fresh evidence to establish an honest claim of right – whether the justice of the case calls for the admission of fresh evidence – where the appellants were unable to present evidence properly due to being unrepresented at the initial hearing – whether an application to adduce fresh evidence should be allowed
LEGISLATION:	s 88(2) of the Nature Conservation Act 1992 s 223(2) of the Justices Act 1886
CASES:	Akiba on behalf of the Torres Strait Islands of the Regional Seas Claim Group v The State of Queensland No 2 [2010] SCA 643 Gallagher v R (1986) 160 CLR 392 Native Title Act 1993 (Cth) Powell v Chief Executive Officer of Customs [2012] QCA 338
COUNSEL:	M Duncan for the applicant Benedict J Power for the respondent
SOLICITORS:	Torres Strait Island Counsel for the applicant Litigation Branch of the Department of Environment and Science for the respondent