Stevenson v Yasso - [2006] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

Stevenson v Yasso [2006] QCA 40

PARTIES:

BRENDA STEVENSON
(complainant/appellant/respondent)
v
RICCARDO DURANTE YASSO
(defendant/respondent/applicant/appellant)

FILE NO/S:

CA No 96 of 2005
DC No 113 of 2003
MC No 88438 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

24 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2005

JUDGES:

McMurdo P, McPherson JA and Fryberg J
Separate reasons for judgment of each member of the Court, McMurdo P and Fryberg J concurring as to the orders made, McPherson JA dissenting

ORDER:

1.    Application for extension of time within which to       appeal granted
2.    Application for leave to appeal granted
3.    Appeal allowed with costs to be assessed
4. Set aside the orders of the District Court of 25 February 2005 and instead order that the appeal under s 222 Justices Act 1886 (Qld) be dismissed with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - where appellant applied for leave to appeal about two and half months out of time - where appellant's explanation for the delay was that the January holiday period made it difficult for him to access pro bono legal services - where possibility for confusion about when time began to run resulting from further order made by District Court judge - where answer to the question of whether in the interests of justice to grant the extension of time interlinked with merits of proposed appeal - whether an extension of time should be granted

PROCEDURE - INFERIOR COURTS - QUEENSLAND - where appellant contends the District Court lacked jurisdiction and issue should have been determined in the Federal Court - where appellant is one of a number of claimants in an undetermined native title claim under the Native Title Act 1993 (Cth) pending in the Federal Court - whether the appellant's pending native title claim prevented the appellant being prosecuted for an offence under the Fisheries Act 1994 (Qld) in the Magistrates Court or the District Court hearing and determining an appeal from the Magistrates Court

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - JUDGE MISTAKEN OR MISLED - where appellant contends District Court judge erred in interpreting transcript evidence in the Magistrates Court - where appellant contends this error led District Court judge to err in determining other matters - where relevant part of transcript in the Magistrates Court was checked by the State Reporting Bureau after Court of Appeal hearing - whether any error in District Court judge's interpretation of transcript - whether District Court judge should have intervened in re‑examination of a witness

PRIMARY INDUSTRY - FISH - OFFENCES - where appellant charged with unlawful possession of "commercial fishing apparatus" under s 84 Fisheries Act 1994 (Qld) ("the Act") - where appellant found not guilty of the charge in the Magistrates Court - where magistrate concluded that although the elements of the offence were made out the appellant was excused by s 14 of the Act as an Aborigine acting in the traditional way of an Aborigine taking fish by means of a net - where respondent successfully appealed to the District Court under s 222 Justices Act 1886 (Qld) - where District Court judge found that s 14 of the Act had no application for a charge under s 84 of the Act - whether s 14 of the Act has application to a charge under s 84 of the Act - whether s 84 of the Act applies to both commercial and non‑commercial fishing apparatus

ABORIGINALS - CRIMES BY ABORIGINALS - CRIMINAL LIABILITY - where magistrate found that the appellant was able to rely on s 14 of the Act to excuse his possession of commercial fishing apparatus as he was an Aborigine and was acting in the traditional way of an Aborigine taking fish by means of a net - where District Court judge found that on the evidence the appellant was not an Aborigine - where District Court judge found that if the appellant was an Aborigine in order to rely on s 14 there needed to be evidence that he took fish under Aboriginal tradition and there was no such evidence - whether the appellant was an Aborigine - whether the appellant produced sufficient evidence that he was in possession of the net by way of Aboriginal tradition - whether the Court should attempt an a priori enumeration of what must be proved to establish Aboriginal tradition as defined in s 36 Acts Interpretation Act 1954 (Qld) - whether the definition of Aboriginal tradition is best worked out in the context of actual cases

ABORIGINALS - GENERAL - APPLICATION OF LAW - where appellant contends that taking fish by means of a net is an Aboriginal tradition in accordance with s 14 of the Act - whether s 14 applies to modifications of Aboriginal traditions such as the use of modern fishing nets

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - where District Court judge found that the appellant failed to discharge the burden or proof on him under s 14 of the Act of adducing some evidence of his Aboriginality and of possession of the net by way of Aboriginal tradition so that the prosecution were not required to negative the operation of s 14 of the Act - whether the burden of proof under s 14 of the Act is required to be discharged on the balance of probabilities

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF LAW - where there was evidence that the appellant had honestly believed he was entitled to have possession of the net and use it for fishing because he had been given permission by an Aboriginal elder - whether on the evidence s 22 Criminal Code 1899 (Qld) could have application to the offence charged under s 84 of the Act - whether there was evidence sufficient to raise s 22 Criminal Code - whether the prosecution proved beyond reasonable doubt that s 22 Criminal Code had no application to the offence charged

Native Title Act 1993 (Cth), s 211, s 224
Acts Interpretation Act 1954 (Qld), s 7(1), s 36
Criminal Code 1899 (Qld), s 1, s 22(2)
District Court of Queensland Act 1967 (Qld), s 118(3)
Fisheries Act 1994 (Qld), s 3, s 10, s 11, s 14, s 84, s 85
Fisheries Regulation 1995 (Qld), s 68, s 71, Sch 8, Sch 17
Justices Act 1886 (Qld), s 222

Aldrich v Boulton [2000] QCA 501; [2001] 2 Qd R 235, cited
Attorney-General for British Columbia v Attorney-General     for Canada [1914] AC 153, considered
Basso-Brusa & Ors v City of Wanneroo [2003] WASCA 103; No 1140 of 2002, 14 May 2003 considered
Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106; (2001) 123 FCR 62, considered
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, followed
Derschaw v Sutton (1997) 17 WAR 419, considered
Director of Public Prosecutions v United Telecasters Sydney     Ltd (1990) 168 CLR 594, considered
Federated Carters and Drivers' Industrial Union of Australia     v Motor Transport and Chauffeurs' Association of     Australia (1912) 6 CAR 122, cited
Federation Insurance Limited v Wasson & Ors (1987) 163 CLR 303, considered
Garcia v National Australia Bank Ltd (1998) 194 CLR 395, considered
Gibbs v Capewell (1995) 54 FCR 503, considered
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, considered
Mabo v Queensland [No 2] (1992) 175 CLR 1, cited
Mason v Tritton (1994) 34 NSWLR 572, considered
Members of the Yorta Yorta Aboriginal Community v State of     Victoria& Ors (2002) 214 CLR 422, cited
Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562, considered
Mott v Mott [1929] QWN 38, cited
Muramats v Commonwealth Electoral Officer (WA) (1923) 32 CLR 500, cited
Ofu-Koloi v The Queen (1956) 96 CLR 172, cited
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493, considered
Palmer v Ostrowski [2002] WASCA 39; (2002) 26 WAR 289, considered
Re Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267, cited
R v Edwards [1975] QB 27, considered
R v Hunt [1987] AC 352, considered
R v Sparrow [1990] 1 SCR 1075, considered
R v Waine [2005] QCA 312; CA No 70 of 2005, 26 August 2005, considered
R v Zischke [1983] 1 Qd R 240, considered
Shaw v Wolf (1998) 83 FCR 113, considered
Vines v Djordjevitch (1955) 91 CLR 512, considered
Walden v Hensler (1987) 163 CLR 561, considered

COUNSEL:

The applicant/appellant appeared on his own behalf
A M Preston for the respondent

SOLICITORS:

The applicant/appellant appeared on his own behalf
C W Lohe, Crown Solicitor, for the respondent

McMURDO P: Mr Yasso was charged under s 84 Fisheries Act 1994 (Qld) ("the Act")[1] with unlawfully possessing on 19 March 2003 commercial fishing apparatus namely one monofilament net of dimensions greater than prescribed in s 12(4) of Pt 3 of Sch 8 of the Fisheries Regulation 1995 (Qld) ("the Regulation") while not the holder of an authority at Dadson's Beach via Zilzie near Rockhampton. He was found not guilty of that count in the Rockhampton Magistrates Court on 28 October 2003. The magistrate concluded that Mr Yasso was acting as an Aborigine under s 14 of the Act in the traditional way of an Aborigine taking fish by means of a net.
[1]The complaint refers to s 85(4) of the Act but it is common ground that the charge was under s 84.

The respondent successfully appealed under s 222 Justices Act 1886 (Qld) to the District Court. On 20 December 2004 the learned District Court judge allowed the appeal. His Honour determined that s 14 of the Act had no application to a charge under s 84 of the Act; if s 14 did apply to s 84, Mr Yasso on the evidence was not an Aborigine; if Mr Yasso were an Aborigine, to enliven s 14 of the Act there must be evidence that he took fish under Aboriginal tradition and there was no such evidence. His Honour also held that the Native Title Act 1993 (Cth) had no application to a charge under s 84 of the Act. Mr Yasso's sentence was adjourned until April 2005. The record does not reveal whether Mr Yasso has now been sentenced but that question is not an issue in this application.

Mr Yasso, through his agent John Dalungdalee Jones (who is not a lawyer), did not attempt to file an application for leave to appeal until 12 April 2005, about two and a half months out of time. Mr Yasso now applies for an extension of time for leave to appeal from the District Court decision. Mr Yasso attended in person at the hearing of the appeal. He rejected the Court's offer to adjourn the matter and to recommend to Legal Aid Queensland that he be given legal representation. At his request he was given leave to have his father, Mr Yasso Senior, who is not a lawyer, appear on his behalf.

By way of explanation for the delay Mr Jones has sent letters to the Court in which he states that the delay was because the January holiday period made it difficult for Mr Yasso to have access to pro bono legal services. It seems there may also have been some confusion as to when the appeal period began to run because the learned District Court judge delivered a further order on 25 February 2005. Even so, Mr Yasso's application was well outside the statutory appeal period. His explanation for the delay in pursuing his right to apply for leave to appeal within the prescribed time period is far from convincing. This Court would not, however, refuse his application for an extension of time if he demonstrated that the interests of justice require the granting of the extension. The answer to this consideration is interlinked with the merits of the proposed appeal. In deciding whether leave should be granted, the relatively trivial nature of the statutory offence at the heart of the application and the fact that he has already had a hearing in the Magistrates Court and a second hearing in the District Court are not factors in Mr Yasso's favour.

Jurisdiction

The first point he wishes to pursue on appeal if he is successful in his applications for an extension of time and for leave to appeal is that the District Court lacked jurisdiction and the issue should have been determined by the Federal Court because Mr Yasso is one of a number of claimants in an undetermined native title application under the Native Title Act 1993 (Cth) ("The Commonwealth Act") apparently pending in the Federal Court. The fact that Mr Yasso is bringing, with others, an application for a native title claim under the Commonwealth Act in the Federal Court which has not been determined does not prevent the lawful prosecution of an offence under the Act in the Magistrates Court. Contrary to Mr Yasso's submissions, s 211 of the Commonwealth Act can only have application to those who are native title holders under s 224 of the Commonwealth Act. There is no evidence that Mr Yasso was such a person. If this were the only matter for the determination of this Court, Mr Yasso's applications would fail.

The correctness of the transcript

Mr Yasso next contends the learned District Court judge erred in interpreting transcript evidence from Mr Hatfield as to a meeting of Darumbal people to consider Mr Yasso's Aboriginality and that this led his Honour to err in determining that Mr Yasso was not a person of Aboriginal descent and had no traditional right to fish with the net in his possession.

This contention can also be quickly disposed of. The learned primary judge referred to a portion of the transcript of Mr Hatfield's evidence given before the magistrate which recorded:

"[Mr Yasso] has applied for membership to my knowledge and he was given - he was approved as - and having associate membership and the reason why he was given an associate membership was you had to be a Darumbal person to be a full member of the organisation. So the meeting - the group decided that [Mr Yasso] was a Darumbal person and he was an associate member and that was approved".

His Honour considered " … that the transcript probably does not accurately record Mr Hatfield's answer in that the last sentence should have read, or at least Mr Hatfield intended to say:
'… the group decided that [Mr Yasso] was not a Darumbal person …'".

I have had my associate contact the State Reporting Bureau to have checked the relevant part of the transcript in the Rockhampton Magistrates Court on 28 October 2003. The court reporters have now compared the audio tape and the transcript. They report that the original transcript was inaccurate and that the transcript should record "so the meeting - the group decided [Mr Yasso] wasn't a Darumbal person …". The transcript has now been corrected. It follows that Mr Yasso has no cause for concern in this respect and that his Honour was right in thinking the transcript may have been inaccurate; it was.

The essence of Mr Yasso's appeal is whether the learned primary judge was right in overturning the magistrate's finding that Mr Yasso was not liable under s 84 of the Act because of s 14. The determination of this issue requires a review of the relevant legislation, of the evidence before the magistrate and the District Court judge on appeal, and of both decisions.

The Act and the Regulation

Part 1 of the Act deals with preliminary matters including the objectives[2] of the Act and definitions.[3] The Act's main purpose "is to provide for the use, conservation and enhancement of the community's fisheries resources and fish habitats in a way that seeks to -
[2]The Act, s 3; amended by s 12 Primary Industries Legislation Amendment Act 2002 (Qld), Act No 49 of 2002, assented to and effective from 24 September 2002.
[3]The Act, s 4.

(a) apply and balance the principles of ecologically sustainable development; and

(b) promote ecologically sustainable development."[4]

[4]The Act, s 3(1); amended by s 12 Primary Industries Legislation Amendment Act 2002 (Qld), Act No 49 of 2002, assented to and effective from 24 September 2002.

The main purpose of the Act is to be achieved by providing for matters including the management of commercial, recreational and indigenous fishing.[5]
[5]The Act, s 3A(b)(ii); inserted by s 12 Primary Industries Legislation Amendment Act 2002 (Qld), Act No 49 of 2002, assented to and effective from 24 September 2002.

Part 1 of the Act is headed "PRELIMINARY", Division 4 of which is headed "Operation of Act" and contains s 10 to s 14. Section 10 states that the Act binds all persons including the State; s 11 deals with the general application of the Act, particularly as to potential areas of confusion between Queensland and Commonwealth jurisdiction; s 12(a) to (d) sets out four specific circumstances where the Act does not apply; s 13 provides that a person may be exempted from the Act or a provision of the Act by regulation and makes it an offence to contravene a condition of an exemption under a regulation.[6] Section 14 of the Act is headed "Aborigines' and Torres Strait Islanders' rights to take fisheries resources etc" and relevantly provides:

"(1)       An Aborigine may take, use or keep fisheries resources,[7] or use fish habitats,[8] under Aboriginal tradition, …
(2)         However, subsection (1) is subject to a provision of a regulation or management plan that expressly applies to acts done under Aboriginal tradition …
(3)         A regulation or management plan mentioned in subsection (2) may be developed only after cooperating with Aborigines … considered by the chief executive to be appropriate, to reach agreement, or reasonably attempt to reach agreement, about the proposed regulation or plan".

[6]The Act, s 13(3).

[7]In the Schedule to the Act "'fisheries resources' includes fish and marine plants".

[8]In the Schedule to the Act "'fish habitat' includes land, waters and plants associated with the life cycle of fish, and includes land and waters not presently occupied by fisheries resources."

The terms "Aborigine" and "Aboriginal tradition" are not defined in the Act. The Acts Interpretation Act 1954 (Qld) defines "Aborigine" as "a person of the Aboriginal race of Australia", "Aboriginal people" as "people of the Aboriginal race of Australia" and "Aboriginal tradition" as "the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships".[9]
[9]Section 36 Acts Interpretation Act 1954 (Qld).

The Explanatory Notes to s 14 of the Act provide that the section:

"… protects the rights of Aboriginal … persons to take, use or keep fisheries resources or use fish habitat under Aboriginal tradition …
A regulation or management plan which affects traditional or customary use of fisheries may be made, after consultation with Aborigines … Conservation, environmental or sustainability concerns are examples of the circumstances in which this provision might be used. The clause does not allow Aboriginal … persons to exploit the resource in a commercial manner without compliance in all respects with the [Act]. The clause is intended to preserve the traditional and customary rights within the framework of proper resource management."

It is common ground that there was no regulation or management plan under s 14(2) of the Act in existence at the relevant time.

Section 84(1) of the Act makes it an offence punishable by up to 300 penalty units to unlawfully use or possess fishing apparatus. Under the dictionary in the Schedule to the Act "fishing apparatus" means:

"anything used, or capable of being used, to take fish, or assist in the taking of fish, and includes, for example -
…
(b) a … net … ".

Section 85 of the Act relevantly provides:

"Sale etc of commercial fishing apparatus prohibited in certain circumstances
(1) In this section -
'commercial fishing apparatus' means fishing apparatus that may be used, bought or possessed only by the holder of a particular type of authority, and includes netting material ordinarily used in the manufacture of commercial fishing apparatus.
…
(4) If commercial fishing apparatus may be used or possessed only by the holder of a particular type of authority, a person must not use or possess the fishing apparatus unless the person is the holder of an authority of that type.
Maximum penalty - 300 penalty units.
…"

Under s 96(2) of the Regulation a recreational fisher may use or possess only fishing apparatus permitted under Sch 8 of the Regulation or a management plan. It is not contentious that the monofilament net that Mr Yasso was found to have in his possession on 19 March 2003 was of a dimension greater than that prescribed in s 12(4) of Pt 3 of Sch 8 of the Regulation.[10] Nor is it contentious that Mr Yasso did not have the authority under s 68(3) of the Regulation allowing him to possess "commercial fishing apparatus".
[10]The Regulation prescribes a 16 m long net with a 28 mm mesh size whilst Mr Yasso's net was 53 m long with a two inch [51 mm] mesh size.

The evidence

The prosecution case turned on two witnesses, Mr Broadsmith and Mr Hatfield. Mr Broadsmith, a district officer with the Queensland Boating and Fisheries Patrol, gave evidence that he approached Mr Yasso on 19 March 2003. Mr Yasso was in possession of a bag containing a fishing net which exceeded the size allowed for recreational fishers under the Act and the Regulation.[11] Mr Yasso gave his date of birth as 24 March 1972. He initially said that he found the net on the beach. When asked about his cultural descent he said he was a South Sea Islander. Mr Yasso then admitted that he owned the net, dragged it about an hour earlier and was then in possession of it. When asked again about his descendency he said that he was Aboriginal and South Sea Islander; he did not know the tribe but his nana was "an Alberts". He was asked if he had permission from local elders to use a net such as that in his possession. He said "I think it's in the Native Title Act that I'm allowed to use it. Ivan Miller told me I could do it". Mr Yasso then went to his car, showed Mr Broadsmith a laminated double-sided page containing s 211 of the Commonwealth Act and indicated that he believed he was entitled to use the net. On 21 March 2003 Mr Broadsmith telephoned Mr Yasso and asked him what Indigenous district he was in. He said: "I was in my grandmother's at Darumbal". Mr Broadsmith asked "What is your tradition to take fish?". He replied "I've been doing it all - we've been doing it all our life". Mr Broadsmith said "How have you been taking fish traditionally?". Mr Yasso replied "With nets, spears and lines".
[11]See the Regulation, s 96, Sch 8.

David Wesley Hatfield gave evidence that he is a Darumbal Aboriginal person and chairman of the Darumbal-Noolar Murree Aboriginal Corporation for Land and Culture ("the Corporation"),[12] a body he described as the representative body for Darumbal people when consulting with State and Federal governments on community issues. He was at the time of the Magistrates Court hearing in October 2003 a councillor and deputy chair of the Central Queensland Aboriginal and Torres Strait Islander Commission Regional Council. As Chairman of the Corporation he was appointed to represent the elders of the Darumbal people and the Council of Elders ("the Council") and the members and associate members of the organization. Fishing was very much part of the Darumbal people's culture and people from other areas had no traditional right to fish in the Darumbal area. The Corporation met with the Marine Park Authority and after consultation with the Council agreed to stop the use of "gill" nets.[13] The Council is composed of 10 people and represented a consensus of the views of the Darumbal community. He has known Mr Yasso for eight to 10 years. He was unaware of any approval from the Council to Mr Yasso to use a net of the type the subject of this charge. He regarded Mr Yasso as a South Sea Islander. Mr Yasso was an associate member of the Darumbal-Noolar Aboriginal Corporation for Land and Culture. This was because only Darumbal persons could be full members of the organization. He said that if Mr Yasso was to involve himself in cultural matters "he should actually wrote [sic] a letter or actually spoke [sic] to someone about it". He agreed that he knew Mr Lewis Mann who was regarded as both a South Sea Islander elder and a Darumbal elder. Mr Lewis Mann was one of the 10 elders on the Council. It was possible for one elder to give permission for someone to fish if that person was speaking on behalf of the whole Council. In cross-examination he agreed that traditional Aboriginal people use nets for fishing but added that they should not do so on other people's country.
[12]This Corporation was registered under the Aboriginal Councils and Associations Act 1976 (Cth) on 14 February 1994.
[13]Later evidence established that a gill net is a net with mesh large enough to trap fish by the gills: see [24] of these Reasons. This also accords with the Macquarie Dictionary definition of gill net.

Mr Yasso gave evidence and called two witnesses, Mr Willie and Mr Lewis Mann. Mr Yasso said that his grandfather was a South Sea Islander who married a Darumbal Aboriginal woman. They produced his father who was half South Sea Islander and half Aboriginal. Mr Yasso's mother is of South Sea Islander background. Mr Yasso learnt to net and spear fish from his family. On 19 March 2003 he was fishing with his cousin, Dwayne Mye, when Mr Broadsmith took his net and about 25 kg of mullet and whiting. He told Mr Broadsmith that under s 14 of the Act he had the right to take the fish but Mr Broadsmith told him he would have to prove it. Mr Yasso told the court that he had permission from a Darumbal elder, Lew Mann, that he was entitled to net for fish by way of practising his culture. To fish in this way was Darumbal culture. He did not accept Mr Hatfield's view that the Darumbal people did not now allow gill net fishing.

In cross-examination Mr Yasso said that he had been taught fishing all his life by his grandfathers and that Mr Lew Mann, a Darumbal elder, gave him permission to fish in this way in Darumbal territory. He agreed he was only an associate member of Mr Hatfield's Corporation but he nevertheless considers himself to be a Darumbal person. Lorna McGuire, also a Darumbal elder, accepted him as a Darumbal person. Mr Yasso was born in Bowen and lived there until he was 16 years old. He has since lived in the Rockhampton area. He was presently employed as a correctional services officer. He agreed that he told Mr Broadsmith that Ivan Miller gave him permission to net fish. Ivan Miller was of South Sea Islander and Aboriginal descent and lived in Rockhampton; he was the uncle of Mr Yasso's cousin.

Derek Willie gave evidence that he was a Kappaburra and Burrida Aboriginal person and his people were close to the Darumbal. He was familiar with the type of net found in Mr Yasso's possession. It was 53 m long, with about a 2 inch gap between the netting and was used for dragging. He said he would not class it as a commercial net because it fitted into the traditional Indigenous customary ways of using nets. Aboriginal people originally used nets made of fibre from plants for fishing and catching birds. When monofilament nets were developed Aboriginal people adapted and commenced to use them. By analogy, canoes had been replaced by Aboriginal people exercising traditional cultural rights by motorized boats. Traditionally, Aboriginal people made nets according to what they intended to catch with them; nets with wider gaps were made for netting larger fish. Drag-netting was certainly a traditional hunting method. Not all Darumbal people were represented by the Corporation and those Darumbal people not represented by the Corporation had a right to carry out their traditional ways. In his view gill net drag‑fishing was fishing in a culturally traditional way for the Darumbal people. The traditional way, which he understood was adopted by Mr Yasso, was to share the catch with family and friends but never to sell it.

In cross-examination Mr Willie agreed that a gill net was a net with mesh large enough to trap fish by the gills. He maintained that many Aboriginal people who identified as Darumbal did not consider they were bound by the decisions of the Council.

Mr Lewis Mann gave evidence that his father was an Aboriginal man and his mother a South Sea Islander woman. He was regarded as and regarded himself as an elder for the Darumbal Aboriginal people. He is also closely associated with the local South Sea Islander community and has input into both South Sea Islander and Aboriginal culture. He described netting as a cultural way of catching fish. He no longer had a net because the fishing inspectors took it off him sometime last year. For the last 30 years or so Aborigines in the area had fished with 50 m drag-nets. He did not know whether Aborigines had fished in this manner before this time. As a Darumbal elder he and his cousin William Mann represented the Manns and Yassos in the Darumbal native title claim. He gave permission to Mr Yasso to fish by using a net of the type the subject of the charge.

In cross-examination he said he had never been a member of the Darumbal-Noolar Murree Aboriginal Corporation and had not sat on that Corporations' Council of Elders. He gave Mr Yasso permission to use the nets "could be a few years ago … probable [sic] six or seven, I don't know".

Mr Yasso then indicated to the magistrate he had called all his evidence. At the invitation of the magistrate, Mr Hatfield, who had been in court when Mr Willie and Mr Mann gave their evidence, was recalled, and reminded of his oath.[14] Mr Hatfield said that the Corporation worked closely with the Fisheries, Marine Park Authority and other agencies to advise on cultural issues. Illegal fishing that went beyond recreational fishing was a problem. He reiterated that the Council comprised 10 elders, including Lew Mann, Kevin Mann, William Mann and two other elders now deceased, and it had made its decision collectively for the Darumbal people. The Council had decided that for the time being there was to be no traditional taking of fish by gill net.
[14]Neither at trial nor on appeal has Mr Yasso objected to this most unusual course which may have resulted in the prosecution wrongly splitting its case: Shaw v The Queen (1952) 85 CLR 365, 379 - 380; R v Chin (1985) 157 CLR 671, 676 - 677, 685 - 687; R v Soma (2003) 212 CLR 299, 308 and R v Goode [2004] QCA 211; CA No 405 of 2003, 25 June 2004. Because it has not been raised as an issue and because of the ultimate conclusions I reach on the grounds of appeal that have been raised, this has not, in any case, amounted to a miscarriage of justice.

The magistrate's decision

The magistrate noted that s 14 of the Act did not directly state that it was applicable to an offence of possession of commercial fishing apparatus; it applied to taking, using or keeping fishing resources. He determined, however, that the purpose of the Act was consistent with s 14 being available as a defence to an offence under s 84 of the Act.

The magistrate found that Mr Yasso, although only an associate member of the Corporation, did identify himself as an Aborigine and was therefore an Aborigine under s 14 of the Act.

The magistrate then found that Aboriginal tradition can be expected to change over the years to take advantage of modern technology. He accepted Mr Yasso's evidence, supported by Mr Willie, that it was within the realms of Aboriginal tradition to use a net of the type the subject of the charge under Aboriginal tradition to drag for fish. He concluded that the taking of fish by means of dragging with a net is a traditional way of taking fish. He was not satisfied that merely because the Council had determined that gill net fishing should not take place in the area this was sufficient to change that tradition. That Council did not seem to represent all the Darumbal people in the area. The magistrate concluded that on the date charged he was satisfied that Mr Yasso was acting in the traditional way of an Aborigine in taking fish by means of a net which was in his possession for the purpose of taking fish under Aboriginal tradition. His Worship found that Mr Yasso had "some form of permission through Mr Mann to fish in the area". Although Mr Yasso was in possession of the net as charged he was excused under s 14 of the Act so that he was not unlawfully in possession of it.

The District Court appeal

The respondent appealed to the District Court under s 222 Justices Act 1886 (Qld) contending that the magistrate erred in finding that Mr Yasso was a member of the Darumbal people; that he had permission from the Darumbal people to take fish using the net in their traditional area; that the taking of fish by use of the net was a traditional way of taking fish for the Darumbal people; and that s 14 of the Act applied to Mr Yasso.

The appeal was heard on 30 November 2004 and the learned District Court judge delivered his reasons on 20 December 2004. His Honour found that the gravamen of the offence under s 84(1) of the Act was the possession of a particular type of fishing apparatus; because the explanatory notes to s 14 of the Act indicated that the clause was not intended to allow Aboriginal persons to exploit fishing resources in a commercial manner without compliance with the Act, he was of the view that s 14 did not apply to an offence against s 84 of the Act.[15]
[15]Reasons for judgment, [17].

In any case, his Honour found that neither Mr Mann nor Mr Willie gave evidence that Mr Yasso was an Aboriginal person[16] and that Mr Hatfield's evidence, which was not challenged by Mr Yasso before the magistrate, was consistent with him not being an Aboriginal person.[17]
[16]Above, [34] - [35].
[17]Above, [30] - [31].

His Honour found that, regardless of whether Mr Yasso was an Aborigine, there was no evidence given by or on behalf of Mr Yasso as to the content of the body of traditions, observances, customs and beliefs[18] of Aboriginal people generally or of any particular community or group of Aboriginal people to support a finding that the possession of the net the subject of the charge was consistent with using fisheries resources under Aboriginal tradition. Mr Hatfield's evidence established that non-Darumbal people should not fish in Darumbal areas without permission and Darumbal people had decided to ban net fishing.[19] There was no evidence from Mr Yasso or his witnesses which would authorize the possession or use by him of the net which was found in his possession.[20] Mr Yasso failed to discharge the evidentiary burden on him under s 14 of the Act of adducing some evidence of his Aboriginality and of possession of the net by way of Aboriginal tradition so that the prosecution were not required to negative the operation of s 14 of the Act. In any case, the prosecution had adduced sufficient evidence to discharge any onus;[21] the element of unlawfulness was made out so that the magistrate should have convicted Mr Yasso.[22]
[18]Above, [41].
[19]Above, [47].
[20]Above, [48].
[21]Above, [51].
[22]Above, [61].

The judge invited submissions as to the appropriate orders to be made. On 25 February 2005 his Honour allowed the appeal with costs to be assessed, set aside the order of the magistrate and adjourned the matter for the hearing of submissions as to sentence.

Discussion

The appeal under s 222 Justices Act 1886 (Qld) was by way of rehearing: s 223. His Honour was required to make his own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate's view: Federated Carters and Drivers' Industrial Union of Australia v Motor Transport and Chauffeurs' Association of Australia;[23] Re Coldham; ex parte Brideson [No 2];[24] Aldrich v Boulton & Anor;[25] Mott v Mott.[26]
[23](1912) 6 CAR 122, Higgins J, 123.
[24](1990) 170 CLR 267, 274.
[25][2000] QCA 501; [2001] 2 Qd R 235, [37].
[26][1929] QWN 38.

(a) Can s 14 apply to an offence under s 84 of the Act?

Neither the terms of s 14 of the Act,[27] nor the Explanatory Notes[28] suggest that the magistrate was wrong in concluding that the legislature intended s 14 of the Act to have application to the present charge. There was no evidence that fishing with the type of net found in Mr Yasso's possession was not ecologically sustainable or outside a framework of proper resource management and in any case there was no regulation or management plan under s 14(2) and (3) of the Act. These factors persuade me that the learned primary judge erred in concluding that s 14 of the Act had no application to an offence under s 84 of the Act. That would not, however, justify the granting of leave in this case unless it was open to the magistrate to find that s 14 of the Act assisted Mr Yasso.
[27]Set out in these Reasons, [12].
[28]Set out in these Reasons, [14].

(b) An Aborigine?

There was in my view ample evidence to support the magistrate's finding that Mr Yasso was an Aborigine. That word should be given its ordinary meaning subject to the assistance given in the Acts Interpretation Act 1954 (Qld)[29] and relevant judicial interpretation. It does not require an ethnological inquiry of a scientific, historical or scholarly character: see Muramats v Commonwealth Electoral Officer (WA);[30] Ofu-Koloi v The Queen.[31] Pertinent considerations are whether the person said to be an Aborigine is of Aboriginal descent, identifies himself or herself as an Aborigine and is recognized in the Aboriginal community as being an Aborigine; see the discussion of this issue by Drummond J in Gibbs v Capewell[32] and Merkel J in Shaw v Wolf.[33] The undisputed evidence was that Mr Yasso was of Aboriginal descent, his grandmother being a Darumbal woman. There was also evidence from Mr Yasso, strongly inferentially supported by the evidence of Mr Willie and Mr Lewis Mann, that Mr Yasso identified as a Darumbal Aboriginal person and was recognized by Darumbal people as Darumbal. The learned primary judge erred in reasoning that the magistrate was obliged to accept Mr Hatfield's unchallenged evidence. Although Mr Yasso, who was not legally represented, did not formally challenge Mr Hatfield's evidence on this point, he plainly conducted his case on the basis that he was an Aborigine. The magistrate recalled Mr Hatfield on this issue so that Mr Hatfield had the opportunity to put his view of Mr Yasso's Aboriginality which the magistrate was not obliged to accept. On this evidence the magistrate was reasonably entitled to find that Mr Yasso was an Aborigine.
[29]See these Reasons, [13].
[30](1923) 32 CLR 500, Higgins J, 506 - 507.
[31](1956) 96 CLR 172, Dixon CJ, Fullaghar and Taylor JJ, 175.
[32](1995) 54 FCR 503, 507 - 508.
[33](1998) 83 FCR 113, 118 - 122, 137.

(c) Aboriginal tradition

Nevertheless this error would not justify the granting of leave unless his Honour was also wrong in concluding that there was insufficient evidence that Mr Yasso was in possession of the net the subject of the charge under Aboriginal tradition so that the prosecution had established the element in the charge of unlawfulness. Was there evidence before the magistrate sufficient to raise the statutory defence provided by s 14 of the Act that Mr Yasso was in possession of the net the subject of the charge under Aboriginal tradition?

The respondent emphasizes the cases of Mason v Tritton[34] and Derschaw v Sutton.[35] In Mason v Tritton Mr Mason, who had been charged with having more than the permitted quantity of abalone in his possession without a licence,[36] unsuccessfully claimed that he was asserting his traditional right to fish under a native title recognized at common law in accordance with Mabo v Queensland [No 2].[37] The New South Wales Court of Appeal found that Mr Mason had failed to establish that native title claim as discussed in Mabo [No 2];[38] nor had Mr Mason shown how his abalone collecting activities fell within the scope of such a rule.[39] It is significant that the legislation under which Mr Mason was prosecuted did not contain a section comparable to s 14 of the Act.
[34](1994) 34 NSWLR 572.
[35](1997) 17 WAR 419.
[36]The permitted quantity was 10; Mr Mason was found in possession of 92 abalone.
[37](1992) 175 CLR 1, applied to s 223(1) Native Title Act 1993 (Cth) in Members of the Yorta Yorta Aboriginal Community v State of Victoria& Ors (2002) 214 CLR 422, Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, Gaudron and Kirby JJ dissenting.
[38]Mason v Tritton, Priestley JA (with whom Gleeson CJ agreed), 604, Gleeson CJ, 574.
[39]Mason v Tritton, Gleeson CJ, 574, Kirby P, 575, 584 and 595.

In Derschaw v Sutton Mr Derschaw and his colleagues were charged with possessing fish contrary to the Fisheries Act 1905 (WA). They contended they were acting in pursuit of a common law native right to fish. As in Mason v Tritton, there was no statutory equivalent to s 14 of the Act. The Western Australian Full Court[40] applied Mabo [No 2] and Mason v Tritton and found that it was necessary in order to rely on a claim of native title fishing rights to establish that there were traditional laws and customs of the kind relied upon by Mr Derschaw exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the area; that the claimant and his intermediate descendants continued uninterrupted to observe those traditional laws and customs; and that the taking of fish on the occasion the subject of the charge was in exercising those laws and customs. An evidentiary burden lies on a defendant who wishes to rely upon a defence of native title fishing rights, the onus then shifting to the Crown to negative the claim.[41]
[40]Derschaw v Sutton, Franklin and Murray JJ, Wallwork J dissenting.
[41]Above, Franklyn J, 431, Murray J, 445.

An important distinction between the present case on the one hand and Mason v Tritton and Derschaw v Sutton on the other is that it was not necessary for Mr Yasso to satisfy the magistrate of native title fishing rights as discussed in Mabo [No 2] to raise s 14 of the Act. That section relevantly provides that an Aborigine may take, use or keep fisheries resources under Aboriginal tradition.

McPherson JA and Fryberg J consider that the legislature intended to place the burden on Mr Yasso of proving on the balance of probabilities that he was an Aborigine acting under Aboriginal tradition. I am not persuaded of that. Mr Yasso was liable, if convicted of the offence charged under the Act, to a penalty of 300 penalty units enforceable under the State Penalties Enforcement Act 1999 (Qld)[42] with the ultimate sanction of imprisonment.[43] The burden of proving the guilt of an accused person, whether charged summarily or on indictment, is on the prosecution beyond reasonable doubt but for the defence of insanity and statutory exceptions:[44] Woolmington v Director of Public Prosecutions.[45] There is nothing in the Act directly stating that the legislature intended to place the onus of proof on a person relying on s 14 of the Act. But the statutory exceptions referred to in Woolmington are not confined to express legislative statements: see Director of Public Prosecutions and United Telecasters Sydney Ltd.[46] Whether the onus of proof shifts to a defendant will depend upon the construction of the statute: Director of Public Prosecutions and United Telecasters Sydney Ltd;[47] R v Hunt.[48] There is nothing in the Explanatory Notes referred to earlier in these reasons[49] to suggest that the legislature intended the onus of establishing reliance on s 14(1) to be placed on a defendant. In Hunt Lord Griffiths, with whom Lord Keith of Kinkel and Lord Mackay of Clashfern agreed and Lord Ackner substantially agreed, said that an analysis of the relevant cases showed that those where courts have held that the burden lies on a defendant are cases where the burden can be easily discharged, such as where it is a simple matter for a defendant to show that he had a relevant licence at the time of the charged offence.[50]
[42]See s 13(1) and the definition of "infringement notice offence" in that Act and State Penalties Enforcement Regulation 2000 (Qld) s 4(1), Schedule 5.
[43]See State Penalties Enforcement Act 1999 (Qld) s 119.
[44]See for example s 15D Crimes Act 1914 (Cth) (repealed: see Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth), Sch 51) or s 210(5) and s 215(5) Criminal Code 1899 (Qld) and R v Carr-Briant [1943] KB 607; R v Cole (1994) 77 A Crim R 91.
[45][1935] AC 462, 481.
[46](1989 - 1990) 168 CLR 594, Brennan, Dawson, Gaudron JJ 601, Toohey and McHugh JJ 611.
[47]Above, 601.
[48][1987] AC 352, 375.
[49]See these Reasons [14].
[50]Above, 374 - 375.

Section 76 Justices Act 1886 (Qld) provides:

"If the complaint in any case of a simple offence or breach of duty negatives any exemption, exception, proviso, or condition, contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in the defendant's defence."

This legislative provision seems to do no more than state the position at common law and is of no real assistance in determining the onus and burden of proof in this case. Clearly, the many matters in the Act and Regulation which are plainly exceptions, exemptions or excuses to the offences contained in a different subsection of the same section require proof by the defendant relying upon them on the balance of probabilities: see, for example, s 68(3) of the Regulation; s 89(3) of the Regulation and Riley v Fuchs[51] and s 96(2) and s 96(3) of the Regulation.
[51][2001] QDC 085; No 2 of 2000, 18 May 2001.

The determination of the issue of whether a defendant is an Aborigine or Torres Strait Islander acting under Aboriginal tradition or Island custom can ordinarily be expected to be much more complex than issues of whether a defendant has a relevant licence, authority, is complying with a management plan or has a reasonable excuse for what would otherwise constitute an offence. In my view s 14 when considered in the scheme of the Act does not amount to an exemption, exception, proviso or condition to an offence under the Act disclosing a legislative intention to impose upon a defendant the onus of bringing the defendant within it on the balance of probabilities. The sections of the Act and the Regulation creating offences are all successive to s 14. Section 14 has the effect that the Act operates in a different way in respect of Aborigines and Torres Strait Islanders taking, using or keeping fisheries resources under Aboriginal tradition or Island custom. An element of the offence with which Mr Yasso was charged which must be proved beyond reasonable doubt is that he committed the offence unlawfully. Once he establishes some evidence of the pertinent matters contained in s 14(1) (subject to s 14(2) and (3)) it is for the prosecution to negate those matters beyond reasonable doubt to establish the element of unlawfulness. But in the end, the result I have reached in this appeal is not in any case affected by the onus and burden of proof under s 14.

The definition of "Aboriginal tradition" in the Acts Interpretation Act 1954 (Qld) does not require the establishment of a native title under the common law as described in Mabo [No 2] but refers to "the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people". The ordinary meaning, consistent with the dictionary definition of "tradition", is "the handing down of statements, beliefs, legends, customs, etc., from generation to generation, especially by word of mouth or by practice".[52] In Chapman v Luminis Pty Ltd (No 4)[53] von Doussa J accepted that the word "tradition" in such a context required a degree of antiquity, perhaps more so than the words "observances, customs or beliefs" but that those words nevertheless carry with them the notion that there has been a handing down from generation to generation in accordance with the understanding of Aboriginal lore and practice.[54]
[52]The Macquarie Dictionary, Federation Edition, Macquarie Library 2001.
[53][2001] FCA 1106 ; (2001) 123 FCR 62.
[54]Above, 143 - 144, [275].

The evidence before the magistrate as to the traditional fishing rights on which Mr Yasso claimed to rely was not extensive. Mr Hatfield stated that fishing, including the use of nets, was very much part of the traditional culture of the Darumbal people. The magistrate could accept that evidence without accepting Mr Hatfield's further evidence that the Council had decreed for all Darumbal people that there was to be no exercise of traditional fishing rights by gill net fishing for the time being or that Mr Yasso was bound by this and could not exercise his traditional Aboriginal fishing rights irrespective of such a decision. Mr Yasso's evidence was that he had permission from Mr Lew Mann, a Darumbal elder, to net for fish by way of practising his culture and that this was Darumbal culture. Mr Hatfield agreed that Mr Lewis Mann was an elder for the Darumbal Aboriginal people. Mr Mann described netting as a cultural way of catching fish for the Darumbal people and that he knew that for the last 30 years or so Aborigines in the Darumbal area had fished in this manner with 50 m drag-nets like the one the subject of this charge. He was unable to say whether before this time Aboriginal people had fished in this manner. He maintained that as a Darumbal elder he gave Mr Yasso permission to use the nets some years ago. Mr Derek Willie, a Kappaburra and Burrida Aboriginal person gave evidence that the use of the net the subject of Mr Yasso's charge was consistent with the traditional customary ways of Aboriginal people using nets; although it was made of monofilament, its use was consistent with Aboriginal people adapting their traditional methods to take advantage of modern technology.

In R v Sparrow[55] Dickson CJ and La Forest J of the Canadian Supreme Court observed that the Aboriginal people of Canada were entitled to exercise traditional rights in a contemporary manner.[56] It follows that the fact that Mr Yasso's net was not made of traditional fibre did not in itself mean that he was not in possession of the net under Aboriginal tradition.[57]
[55][1990] 1 SCR 1075; cited with approval in Mabo [No 2] by Dawson J, 134, Toohey J, 196.
[56]Above, 1099; cited with approval in Western Australia v Ward (2002) 213 CLR 1 by Kirby J, 244, [574].
[57]See Mabo [No 2], Brennan J, 70; Commonwealth v Yarmirr (2001) 208 CLR 1, Kirby J, 132; Derschaw v Sutton, Wallwork J (diss), 440.

The evidence supported the conclusion that fishing by nets of the type the subject of the charge was an Aboriginal tradition in that it was handed down from generation to generation amongst Aboriginal people generally and also amongst the Darumbal Aboriginal people. There was no contrary evidence. The fact that fishing may also be a common tradition handed down from generation to generation in non‑Aboriginal culture does not make it any less an Aboriginal tradition, as the plain words of s 14 of the Act recognize. There was certainly sufficient evidence that Mr Yasso was acting under Aboriginal tradition in his possession of the net the subject of the charge to raise s 14 of the Act. The learned District Court judge erred in finding to the contrary. To disprove the application of s 14 of the Act the prosecution relied on the evidence of Mr Hatfield. Mr Hatfield's evidence was that traditional Aboriginal people used nets for fishing although not in other people's country. His evidence that Mr Yasso was not a Darumbal person and even Darumbal people were not gill-netting at this time was contradicted by Mr Yasso's own evidence and inferentially by the evidence of Mr Willie and Mr Mann. Mr Mann's evidence was that as a Darumbal elder he gave Mr Yasso permission to fish in this way in Darumbal territory. Mr Hatfield's evidence did not require the magistrate to be satisfied that Mr Yasso was acting unlawfully in that he was not acting under s 14 of the Act when he was in possession of the net the subject of the charge. The learned District Court judge was required to reconsider the issues on the evidence but giving proper weight to the magistrate's view of the facts.[58] It may be that another magistrate may have reached a different conclusion on the same evidence but the magistrate's finding here was certainly open on that evidence. It follows that his Honour was wrong in overturning it. The magistrate did not specifically advert to the onus or standard of proof. He stated that he was satisfied that on the date charged Mr Yasso was acting in the traditional way of an Aborigine in taking fish by means of a net which was in his possession for the purpose of taking fish under Aboriginal tradition so that he was not unlawfully in possession of it. Even were the onus of proof of the matters under s 14(1) of the Act on Mr Yasso on the balance of probabilities, the magistrate was entitled to conclude as he did.
[58]See the cases referred to in [36] of these reasons.

The interests of justice require the granting of the applications for an extension of time and of leave to appeal. The appeal should be allowed and the decision of the District Court judge set aside.

(d) Section 22 Criminal Code 1899 (Qld)

Another interesting and important point raised at the hearing of the application for leave to appeal was whether on the evidence s 22 Criminal Code could have application to the offence charged; if so, was there evidence sufficient to raise s 22 and did the prosecution prove beyond reasonable doubt that s 22 had no application to Mr Yasso's case.

Section 22 Criminal Code relevantly provides:

"(1) 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 the offender is expressly declared to be an element of the offence.
(2) But 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 term "property" is defined in s 1 Criminal Code relevantly as including:

"(a)every thing animate or inanimate that is capable of being the subject of ownership; … ".

Section 36(1) Criminal Code has the effect that s 22 applies to all persons charged with any criminal offence against the statute law of Queensland.

It is well accepted that s 22 Criminal Code does not only apply to a claimed proprietary or possessory right in property[59] but also to a claim to be entitled to act in respect of property: R v Waine.[60] In that case Keane JA, with whom the other members of the Court agreed, observed:

"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."[61]

[59]Cf R v Walsh [1984] 2 Qd R 407.

[60][2005] QCA 312; CA No 70 of 2005, 26 August 2005.

[61]Above, [25].

There was clear evidence before the magistrate that Mr Yasso believed that he was entitled to have possession of the net and to use it for fishing because the Darumbal Aboriginal elder, Mr Lew Mann, gave him permission. The magistrate found that Mr Yasso had, and inferentially therefore honestly believed he had, some form of permission through Mr Mann to fish in the area with the net. That evidence suggests that Mr Yasso was claiming a right to possess the net, potentially raising s 22(2) Criminal Code and requiring the prosecution to prove beyond reasonable doubt that Mr Yasso was not in possession of the net in the exercise of an honest claim of right and without intention to defraud. The net was property as defined in s 1 Criminal Code but is an offence against s 84 of the Act "an offence relating to property" and can possession of a net be "an act done or omitted to be done by [Mr Yasso] with respect to any property"?

Some assistance in answering those questions is gained from the decision of the High Court of Australia in Walden v Hensler.[62] Mr Walden was found to be an unlicensed person in possession of a bush turkey carcass and a live bush turkey chick contrary to s 54(1)(a) Fauna Conservation Act 1974 (Qld). That Act contained no statutory equivalent to s 14 of the Act. Mr Walden claimed that he believed he was entitled to take the turkey as "bush tucker" in accordance with Aboriginal custom and his own life practice. Brennan, Deane and Dawson JJ (Toohey and Gaudron JJ dissenting) found that s 22 Criminal Code did not provide a defence to that charge. All five judges gave separate reasons for their conclusions. An analysis of those reasons suggests that s 14 of the Act has the effect that s 22(2) Criminal Code has application to Mr Yasso's case.
[62](1987) 163 CLR 561.

Brennan J was of the view that s 22 Criminal Code applied only to offences in which the causing of another to part with property or the infringing of another's rights over or in respect of property was an element.[63] On that view s 22(2) Criminal Code does not assist Mr Yasso.
[63]Above, 574 - 575.

Deane J considered that the prohibited fauna was property for the purposes of s 22 Criminal Code because under s 7 of the Fauna Conservation Act 1974 (Qld) it was the "property of the Crown". Deane J nevertheless rejected the applicability of a defence under s 22 Criminal Code because, even accepting Mr Walden's honest belief of the special entitlement to possess the bush turkeys, he only had a defence under s 22 Criminal Code if that entitlement (assuming it existed) would constitute an answer to the offence charged.[64] The general words of s 54(1) make the taking or keeping of fauna by a person an offence regardless of whether that person would have had rights of ownership or traditional hunting rights with respect to that fauna.[65] Mr Walden's assertion of traditional rights was no more than an assertion that he was unaware that the relevant criminal law applied to override those rights.
[64]Above, 580 - 581.
[65]Above, 583.

Dawson J found that s 22 Criminal Code was inapplicable because s 54(1)(a) plainly imposed a general prohibition against the keeping of fauna irrespective of any proprietary or lesser right in the fauna so that there was no scope for the exercise of any claim of right.[66] It seems that had there been an equivalent to s 14 of the Act his Honour's view may have been to the contrary.
[66]Above, 593 - 594.

Toohey J considered there was no warrant for reading down s 22 Criminal Code in the way preferred by Brennan J. Section 22 Criminal Code by way of s 36 Criminal Code unequivocally applied to the Fauna Conservation Act 1974 (Qld) and the definition of property in s 1 Criminal Code was applicable to the turkeys in Mr Walden's possession. An offence under s 54 was an offence to which s 22 Criminal Code had application because it related to the taking or keeping of something which answers the description of property.[67]
[67]Above, 598 - 599.

Gaudron J also preferred a wide interpretation of s 22 Criminal Code and considered that Mr Walden's claim of right based on his membership of an Aboriginal community and the customs of that community laid a sufficient foundation for the applicability of s 22 Criminal Code, provided that the claim was made by reference to some supposed operation of law, not merely a moral or non‑legal regime. If a claim of right based on the customs of the Aboriginal community is asserted on the basis that the customs are recognized by law, the claim is within s 22 Criminal Code.[68] Mr Walden's evidence was that before his hunting trip he sought and obtained permission to hunt from the manager of the property from which the birds were taken and he thought that his claim derived from that permission or that such permission was a condition precedent to the exercise of a right recognized by law.[69]
[68]Above, 608 - 609.
[69]Above, 609.

The approaches taken by Deane, Toohey and Gaudron JJ, and perhaps Dawson J, support the application of s 22 Criminal Code to an offence against s 84 of the Act where the honest claim of right relates to a claim under s 14 of the Act to be acting under Aboriginal tradition. Those views are consistent with the use or possession of fishing apparatus under s 84 of the Act being an offence relating to property (the net) for an act done with respect to property (the possession of the net) within the meaning of s 22(2) Criminal Code.

This approach is also consistent with that of the Full Court of Western Australia in Molina v Zaknich.[70] Mr Molina was charged under s 82B(1) Police Act 1892 (WA) with remaining on premises without lawful authority. McKechnie J, with whom Templeman J agreed, analysed Walden v Hensler and concluded that the effect of the judgments of Deane, Toohey and Gaudron JJ was that the majority of judges in Walden v Hensler found that s 22 Criminal Code should be given its literal and broad effect so that it applied to offences such as those under s 82B of the Police Act.[71] Malcolm CJ considered that the defence under s 22 Criminal Code was available for the reasons given by McKechnie J and added that in Walden v Hensler "a majority of the Justices in the High Court, namely Deane, Toohey and Gaudron JJ, disapproved of the narrow view of s 22 expressed by Virtue J in Pearce v Pascov^[[72]] which limited the scope of s 22 to offences 'relating to property and contracts' in Pt VI Criminal Code".[73]
[70][2001] WASCA 337; (2001) 24 WAR 562.
[71]Above, 579, [101].
[72][1968] WAR 66.
[73]Molina v Zaknich, 566, [13].

Olsson AUJ in Palmer v Ostrowski,[74] relying on Molina v Zaknich, observed that s 22 Criminal Code is to be accorded a liberal interpretation and is applicable to any situation in which an act is done with respect to property in the exercise of an honest claim of right and without intention to defraud; s 22 Criminal Code is not restricted in its application to offences relating to property under Pt VI Criminal Code.[75] Although Palmer v Ostrowski was overturned in the High Court on a different basis[76] these observations were not the subject of that appeal. That approach to s 22 Criminal Code was also cited with approval in Basso-Brusa & Ors v City of Wanneroo[77] where Pullin J observed that s 22 Criminal Code may well have application to offences under the Town Planning and Development Act 1928 (WA).[78]
[74][2002] WASCA 39; (2002) 26 WAR 289.
[75]Above, 304, [101].
[76]Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493.
[77][2003] WASCA 103; No 1140 of 2002, 14 May 2003.
[78]Above, [14] - [17].

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.

An observation

If the responsible authorities are concerned as to the potential impact of this decision on the ecological sustainability of fisheries resources and fish habitats, the legislature can address this by the provision of a suitable regulation or management plan under s 14(2) and (3) of the Act.

Order

I would grant the extension of time within which to apply for leave to appeal; grant the application for leave to appeal; allow the appeal with costs to be assessed and set aside the orders of the District Court of 25 February 2005 and instead order that the appeal under s 222 Justices Act 1886 (Qld) be dismissed with costs to be assessed.

McPHERSON JA: By complaint made by a fisheries inspector, Riccardo Durante Yasso was charged that on 19 March 2003 at Dadson’s Beach, which is near Yeppoon in central Queensland, he unlawfully possessed commercial fishing apparatus in the form of a monofilament net of dimensions greater than prescribed in s 12(4) of Part 3 of Schedule 8 of the Fisheries Regulations 1995 while he was not the holder of an authority under the legislation. For reasons that will appear, the magistrate at Rockhampton found Mr Yasso not guilty of the offence and dismissed the complaint. An appeal to the District Court was allowed by Britton DCJ and the order dismissing the complaint was set aside. His Honour fixed a date for hearing submissions on sentence; but, before that date arrived, Mr Yasso applied to this Court under s 118(3) of the District Court Act 1967 for leave to appeal against the order allowing the appeal from the magistrate. This is his application for leave.

At the hearing of the complaint in the magistrates court, there was uncontradicted evidence that Mr Yasso was found at or near the beach in possession of a 52 metre monofilament net, which he admitted to be his, with a mesh of approximately two inches, or about 50 mms or more. He was also found with some 25 kg of mullet and whiting in his possession; but it is important to emphasise that he was not charged with taking or keeping fish contrary to provisions of the Fisheries Act 1994 or the Fisheries Regulations, but with being in possession of the offending net or “commercial fishing apparatus” without being the holder of an authority to possess such a net. The fish, which he admitted he had caught with the net, are irrelevant to that charge. The outcome of the complaint would or ought to have been the same even if, for example, the net had been found in his possession in a cupboard at his home, or in his car on the way to Dadson’s Beach on the day in question. He was charged not with using the net to take fish, but with possessing a net of the dimensions averred in the complaint. The net, and the fish, were seized and a receipt (ex 3) was given for them as required by s 157 of the Act. The offence with which Mr Yasso was charged is created by s 84(1) which provides that “a person must not unlawfully use or possess fishing apparatus”. Fishing apparatus is defined in the schedule to the Act as meaning “anything used, or capable of being used to take fish” including, for example, “(b) … a … net”.

To discover the content and meaning of the word “unlawfully” in s 84(1) of the Act, it is necessary to go to the Fisheries Regulations. Regulation 68(3) provides that:

“(3) A person may possess commercial fishing apparatus only if the person holds an authority allowing the person to possess the apparatus”.

As was shown by a certificate (ex 1) admitted in evidence under s 184(4)(c) of the Act, Mr Yasso possessed no such authority. Section 85(4) provides that if commercial fishing apparatus may be possessed only by the holder of a particular type of authority, a person “must not … possess the fishing apparatus” unless he is the holder of an authority of that type. There may be an element of doubling up in the two statutory provisions referred to. Section 85 of the Act is however, concerned principally with “sales etc” of commercial fishing apparatus; and I think that reg 68(3), which appears in Part 8 Fisheries offences, is the critical provision for the purpose of determining what is “unlawful” about possessing such apparatus. In what follows I will refer to it rather than to s 85(4).

“Commercial fishing apparatus” is defined in the statutory dictionary in Part 2 of Schedule 17 of the Regulations to mean fishing apparatus “other than fishing apparatus that may be used or possessed by a recreational fisher under schedule 8 or a management plan”. No management plan is shown to exist or to have existed in respect of Dadson’s Beach, so that the only question is whether the net in question is one that may be possessed by a recreational fisher. Under schedule 8 the expression “recreational fisher” is in turn defined in the schedule 17 dictionary as meaning:

“a person, including a fisher, who takes or possesses fish, other than –

(a) for trade or commerce; or

(b) in the exercise or enjoyment of native title rights and interests in relation to land or matters under the Native Title Act 1993 (Cwlth)”.

There is no suggestion in the evidence that Mr Yasso was taking or possessing fish in trade or commerce as defined, or that he was a native title holder within the meaning of s 211 and 224 of the Commonwealth Act. Exhibit 2 shows that there are native title claimants to land at Dadson’s Beach, but Mr Yasso is not among them.

Mr Yasso was therefore a “recreational fisher” in terms of the definition of “commercial fishing apparatus” in the schedule 17 dictionary. To find out what fishing apparatus such a fisher may lawfully possess calls for a detour to reg 12 in Part 3 of schedule 8 of the Fisheries Regulation. Schedule 8 is entitled Recreational fishing – use of fishing apparatus. Regulation 12(1) of Part 3 provides that fish may only be taken by using cast, scoop or seine nets. Regulation 12 of that Part of schedule 8 under the heading Permitted ways of taking fish provides in s 12(4) that:

“(4) A seine net must not be longer than 16m and must have a mesh size of not more than 28 mm”.

A seine net is defined to mean “a beach or haul seine net, with or without a pocket, shot in a way to partly encircle fish”. A haul seine net is defined to mean a seine net that is hauled, without the use of a boat, to complete the taking of fish. Although the evidence on the point is not as specific as it might be, there is no dispute that the net in question answered this description, and that Mr Yasso and his companion on 19 March 2003 were using it in that way. Because, as I have said, the net was 50 metres long and had, according to the evidence, a mesh size of 2 inches, it exceeded by a considerable margin the dimensions specified in reg 12(4) of Part 3 of schedule 8. The net does not appear to have been tendered in evidence at the magistrates court hearing, but it was described in evidence, and there is no doubt or dispute about its identity or dimensions. The certificate (ex 1) admitted at the hearing proved that on 29 March 2003 Mr Yasso did not have authority under the Act to use, or possess commercial fishing apparatus such as the net seized from him that day. Why, then, was he not convicted by the magistrate?

The answer is said to lie in s 14(1) of the Fisheries Act –

“An Aborigine may take, use or keep fisheries resources…. under Aboriginal tradition…”.

By definition, “fisheries resources” includes fish. The insuperable obstacle to using the provisions of s 14(1) as a means of avoiding conviction in this case was and is that Mr Yasso was not charged with taking, using or keeping (which includes possessing) fish, but with possessing commercial fishing apparatus in the form of a seine net with dimensions exceeding those specified in the Regulations. This makes it difficult to discuss in any relevant way the matter of Aboriginal tradition or whether the net was possessed under such a tradition. In his reasons for dismissing the complaint, the magistrate said that “it would … seem generally from the evidence that it is not beyond the realms of tradition to use a net which could be 50 metres in length”; but the question is not whether the use of a net of that size to catch fish was authorised under s 14(1), but whether the possession of a net of those dimensions was permitted by that provision. I am unable to see that it was or is.

It is true that catching fish almost inevitably involves the use of some kind of apparatus or equipment. The definition in the Act of “fishing apparatus” includes as examples hook, line or rod, net, pitch fork, spear gun or trap. Tickling trout, as gypsies are said to do, may be the only method left out of this collocation; but, as I suspect I have already said more than once, it was not for taking fish that Mr Yasso was prosecuted but for being in possession of the offending net or “commercial fishing apparatus”. Doing so remained an offence whether or not he caught fish with it, and whether in taking fish with it he was doing so under Aboriginal tradition.

The most that can be said in support of the magistrate’s order dismissing the complaint is that it would hardly be possible to take, use or keep fish under Aboriginal tradition except by using one of the forms of defined “fishing apparatus” including a net, and using a net necessarily involves having it in one’s possession. To that extent, s 14(1) may be said to authorise the use and incidental possession of a net to take fish under Aboriginal tradition. The question then is, what kind of net may be used under that tradition? May it to be a net of any dimensions in length and mesh size, or only a net that does not constitute “commercial fishing apparatus” within the meaning of the Regulations?

This is a question of statutory interpretation or construction of the Act as a whole, which by s 7(1) of the Acts Interpretation Act1954 includes the Regulations. One starts with the proposition in s 10 that the Act “binds all persons”; and that by s 11(1) it applies to persons, things and acts on or in land within the limits of the State and Queensland waters. The net here was seized on or near the beach. In providing that an Aborigine may take fish under Aboriginal tradition, s 14(1) states an exception to the generality of ss 10 and 11(1). But it does so only in respect of the taking of fish under that tradition and not possessing “commercial fishing apparatus” as defined.

Aboriginals have, it may be accepted, long possessed and used nets for the purpose of catching fish. There is evidence to that effect in this case; but it is another matter to say that they may lawfully possess nets answering the definition of “commercial fishing apparatus”. A person may possess such equipment only if he holds an authority allowing him to do so: reg 68(3), and he may use such equipment only if authorised in that behalf: reg 68(1). He may take fish for trade and commerce only if he is a commercial fisher or holds “another authority” allowing him to take fish for trade or commerce: reg 71(1). These provisions are specific in the prohibitions they create and quite general in the range of persons to whom they apply. The effect of reg 68(3) read with reg 12(4) of Part 3 of schedule 8 is that a person may possess a seine net larger than 16m with a mesh size more than 28 mm only if he holds an authority to possess such equipment. Section 14(1) of the Act does not qualify or limit those provisions in any way, so as to exclude them from applying to Aborigines taking fish under Aboriginal tradition. An Aborigine may take fish under that tradition, but not if it involves him in possessing “commercial fishing apparatus”. Being an Aborigine with traditional fishing rights does not confer on him “authority” to possess such apparatus. There is nothing in s 14(1) to suggest that it does.

As a matter of interpretation or construction, therefore, I conclude that, in authorising fishing under Aboriginal tradition, s 14(1) does not create an exception to the provisions of the Regulations prohibiting the possession of commercial fishing nets. If I am wrong about this, it is necessary to determine whether the relevant Aboriginal tradition was established in the case of Mr Yasso. To qualify under s 14(1), I am prepared to accept that Mr Yasso is an Aborigine. He at first said he was a South Sea Islander, which in Queensland generally means a person of Melanesian race whose ancestors originated in Vanuatu or the Solomon Islands, many of whom were forced or lured to Australia in the 19^th century to work on the cane fields. Mr Yasso was born in Bowen, and said his grandmother was an Aborigine of the Darumbal people who inhabit the area of Dadson’s Beach. Darumbal people are pursuing the native title claim previously referred to. It seems that Mr Yasso identifies with both the Aboriginal community and the South Sea Islander community. Although there could have been more evidence on the subject, I consider that Mr Yasso’s Aboriginality was sufficiently established for the purposes of s 14(1).

The real question, as the magistrate recognised in his reasons, is whether Mr Yasso was taking or catching fish “under” (which I take to mean “by virtue of”) Aboriginal tradition. Statute apart, everyone, Aboriginal or not, in Australia, may under the common law exercise the right or privilege of fishing in tidal waters: see Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153, 168. There can be little doubt that long before the advent in Australia of the common law, Aboriginals fished in tidal waters like Dadson’s Beach. That is something of which I would be prepared to take judicial notice based on texts, judgments and Acts of Parliament. There is a question, however, whether, when an Aborigine fishes, he is doing so in the exercise of his common law rights, or as a member of the Aboriginal community under Aboriginal tradition, or both. Unless there is something distinctive about Aboriginal or European fishing methods, I do not see how the question can be resolved by evidence. As Gleeson CJ said in Mason v Tritton (1994) 34 NSWLR 572, 574, fishing is an activity which is natural to people who occupy or visit coastal regions. It is more likely than not that Mr Yasso did not, on 19 March 2003, analyse his activities sufficiently to be able to say whether or not he was exercising his fishing rights by virtue of the common law or of Aboriginal tradition. I would regard him on this occasion as claiming to exercise his rights under both regimes if both are available to him.

This raises in rather acute form the question whether the method of fishing enters into the process of determining if the activity engaged in by Mr Yasso on 19 March 2003 was “under Aboriginal tradition”. The answer depends in part on the period of time during or from which the tradition must be shown to have existed. Section 14(1) does not elucidate this question. The definition of “Aboriginal tradition” in s 36 of the Acts Interpretation Act expands “tradition” to mean “the body of traditions, observances, customs and beliefs of Aboriginal people generally” or of a particular group of them, and includes any such traditions, observances etc, “relating to particular… objects”. It does not specify, however, how far back the particular tradition must be proved to have existed.

Decisions concerning native title to land and waters adopt the date of the extension of British sovereignty to New South Wales in 1788 as the critical event; but that is because the Crown’s radical title to land and its power to grant lands is an incident of sovereignty, and the Aboriginal title must therefore be shown to have existed at that date. It is less clear whether, if all that is involved is a “tradition” of exercising a right like that envisaged by s 14(1), it is necessary to show that it existed as far back as 1788. In Mason v Tritton (1994) 34 NSWLR 572, which is one of the few cases in which a comparable tradition was alleged, in that instance of diving and taking abalone, Kirby P thought it was necessary to show that the traditional “right to fish” existed before the Crown claimed sovereignty over eastern Australia in 1788: see 34 NSWLR 572, 584. But it is noteworthy that Priestly JA, with whom Gleeson CJ agreed, considered the question in terms of whether the claimed native fishing right was “part of a recognisable system, in existence immediately before the common law became the law of the colony of New South Wales” (at 601).

2. The native interest must be a recognisable part of the system of rules observed by an identifiable group of people connected with a particular locality …”.[94]

The matter being discussed in Mason v Tritton was, what must be proved at common law to establish a right or interest which survived the advent of the common law in Australia. (Later authority suggests that it was the imposition of British sovereignty rather than the advent of the common law which was the critical event, but that is immaterial for present purposes.[95]) Tradition was but one element in the establishment of the right or interest. (The same applies to the decision of the Supreme Court of Western Australia in Derschaw v Sutton.[96]) That is very different from what must be established to satisfy the elements of s 36 of the Acts Interpretation Act 1954. The tradition referred to in that section need not find its expression in or be sanctioned by rules; need not be traced back to any particular year (whether 1788 or 1828); and, most importantly, need not give rise to a right or interest or any kindred concept, or even be recognised by the common law. Were it otherwise, the definition in s 36 would resemble that in s 223 of the Native Title Act 1993. I reject Mr Preston's submission.

[93](1992) 175 CLR 1.

[94](1994) 34 NSWLR at p 598.

[95]Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422.

[96](1997) 17 WAR 419.

Nothing is to be gained by attempting here an a priori enumeration of what must be proved to establish the tradition defined in s 36. Indeed, any such attempt must carry a high risk of error. The matter is best worked out in the context of actual cases.

That brings me to the last issue which arose under s 14, the question of whether the tradition had been modified to exclude the use of gill nets. I am prepared to assume that at least in theory, a custom or belief regarding the method of modification of an aboriginal tradition might exist within that tradition (although it seems unlikely) which might be proved, or that the law might recognise a modification from demonstrated changes to a tradition over a long period of time. I am also prepared to assume that such a change might be made notwithstanding an adverse impact upon individuals. What the prosecution sought to prove in this case was that the Darumbal people had modified their tradition by banning the use of gill nets.

The principal witness on this aspect of the prosecution case was Mr Hatfield. He described himself as a Darumbal aboriginal person whose ancestors go back many thousands of years. He was chairman of the Darumbal-Noolar Murree Aboriginal Corporation for Land and Culture, which he described as the representative body to act on behalf of the Darumbal people in consultations with state and federal government departments on community issues. He claimed some surprising authority both for himself and for the Corporation:

“… basically, ah, the organisation is a representative body for – for Darumbal people and also the council of elders which has been, ah, set up. Ah, very much as an operational sort of body that actually, ah, participates in, ah, various sort of issues that, ah, Darumbal people need to take part in, whether it’s marine park planning or it’s – whatever planning issues or, ah, fishing. It could be associated with, ah, any sort of indigenous sort of, ah, issues that are happening at the time. So very much, not only in consultation, but also acting – acting on behalf of, ah, Darumbal people, yeah.
Uh-huh. And then are you able to speak on behalf of the – the Darumbal elders? -- I am, yeah. I’m, ah, as – as the chair of the, ah, organisation I – I – I’m sort of appointed to represented the – represent the, ah, the elders of the Darumbal people and the council of elders and also the members and associate members of the – of the organisation.”

He did not explain how the organisation acquired the authority to speak on behalf of the elders of the Darumbal community, but in re-examination he reiterated that he had been elected to represent the Darumbal council of elders. He testified that a few years earlier the Department (presumably the Fisheries Department) had consulted the organisation about gill netting. The organisation was
“concerned about the numbers of dugong and turtle which were being caught up in the net and there was a bit of controversy in the community about gill nets and I suppose it's still on, that debate, but we certainly - because it's such a sensitive issue we'd like the - we've actually put a ban on gill netting, you know, the community itself ‘cause we can see the dangers of it all.”

He said that there was consultation with the elders and it was decided to stop the use of those nets. In cross-examination he said that the objection to [gill] net fishing was not his personal view, but a decision made by the organisation after five-inch gill nets had caused a lot of trouble in the community for a period of time. All gill nets were banned regardless of whether they were five inch or two inch nets. The ban did not apply to cast nets. (Presumably these are not made with large mesh sizes.) It was the result of consultation with those of the people who came to the meeting. It applied until such time as the people might meet and discuss the issue again.

That was where his evidence stood until almost the end of his re-examination. There then occurred the following passage:

“MR FARRAH: Okay. Now also too, you were asked about the decision to ban the gill nets. Now, and again, I don’t like putting these as statements but you’ve already given the evidence in my opinion, you said earlier on that the decision to ban the gill nets was actually made by the council of elders? -- That’s right, yeah.
Yes. And it was – but it was through the organisation that it was to communicate? -- That’s right, yeah.
Yes. So it wasn’t the organisation that banned – the organisation standing alone, it was the council of elders? -- No, that’s right, yeah.”

That was blatantly leading. It ought not to have been allowed when Mr Yasso was unrepresented. It did not reflect, indeed was inconsistent with, what had been said earlier. But matters did not end there. At the close of the defence case, the magistrate himself intervened:
“BENCH:        The – I know it’s a bit unusual the way these proceedings have been conducted here today but I think probably all I’m trying to do is to sort something out. And I know Mr Hatfield’s in Court – I know Mr Hatfield has given evidence earlier in the piece but he’s also had an opportunity of hearing the witnesses, Mr Willie and Mr Mann, about cultural matters and I don’t know whether it’s appropriate or not as to whether Mr Hatfield thinks that he could give any other evidence but is there anything, Mr Hatfield, that you wanted to say that would change anything you’ve said before or-----
MR HATFIELD:         Um-----
BENCH:          I said it was a bit unusual but-----
MR HATFIELD:         Well, probably just to – just to say that-----
BENCH:          Do you want to come back to the witness box. I think it’s probably – you’ve no problem with this – I know it’s unusual, Mr Farrah.
MR FARRAH:            Well, I – Yeah – given the circumstances, your Worship, and the – and the witnesses and the evidence-----
BENCH:          I think so.
MR FARRAH:            -----I don’t object to it, no.
BENCH:          Just come back to the witness box, Mr Hatfield.”

Having reminded Mr Hatfield of his oath, the magistrate then asked him:
“What I'm concerned about is this cultural method of taking fish and you've heard some of the things that Mr Willie’s had to say and your own things and what Mr Yasso’s had to say, but do you want to respond to anything there?”

In my judgment that intervention was quite improper, particularly when dealing with an unrepresented defendant. First, even assuming the magistrate had power to recall a witness of his own motion, no occasion for curial intervention arose in the circumstances of this case. This was a criminal prosecution. If the occasion for the recall of a prosecution witness had arisen, it was for the prosecutor to make the appropriate application. The intervention created a serious risk that dispassionate members of the public might perceive the bench to be biased in favour of the prosecution. Despite the intervention the prosecutor made no such application. Second, had he done so the magistrate would have been obliged to refuse it. The rules regarding reopening the prosecution case are well settled:

“The prosecution may be permitted to adduce evidence after the close of the defence case in the discretion of the trial judge. The discretion is, however, to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case. That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. If it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances.”[97]

No exceptional circumstances were present in this case. There was no suggestion of a breach of the rule in Browne v Dunn.[98] Third, although the prosecutor was given the opportunity to comment on the course proposed, Mr Yasso was given no such opportunity. He was surely entitled to be heard. Fourth, the phrasing of the magistrate's first question was unfortunate. The magistrate was presiding at a criminal trial, and the desire or otherwise of a witness for the prosecution to respond to what had been said by defence witnesses was quite irrelevant.

[97]The Queen v Chin (1985) 157 CLR 671 at p 684.

[98](1893) 6 R 67.

Predictably, the question elicited a lengthy, unfocused response of doubtful assistance in the trial. That naturally led the magistrate’s questioning to become more focused:

“But do you have problems with the ideas that nets are used, whether it’s a – a cultural method of capturing fish, to use net? Do you accept the concept there? -- Um, well, um, to me it doesn’t really matter my opinion. I’m really here to represent the council of elders--
Mmm. Well, that’s what – I was going to try and get – the council’s opinion of it is? – Yeah.
Through you? -- And we – well my – my idea or my concept is really depended on how the elders feel about it, so, if they say that’s the decision that’s made well that’s how – I respect that decision basically.
Mmm. And you say the decision of the elders is at the moment is there’s no – no taking of fish by gill net? – Yeah. As – as it stands today, yeah.”

That was just as leading as the earlier questioning by the prosecutor had been.

The possible modification of the tradition was a question which went to the very definition of the tradition relied upon by Mr Yasso. There was some hint in the argument before us that even if Mr Yasso bore the onus of proving the existence of an aboriginal tradition under s 14 of the Act, the prosecution nonetheless bore the onus of proving any modification of that tradition. That suggestion is not in my judgment correct. If Mr Yasso bore the onus of proving the elements of s 14, he was obliged to prove that he acted “under Aboriginal tradition”. In the circumstances of this case, that meant he was required to prove the existence of a tradition which permitted him to use (and hence possess) the net in question on the day of the alleged offence. That in turn meant that, if the possibility of a modification to the tradition excluding its application to that net was fairly raised, he was obliged to disprove it. On the other hand, if the onus was on the prosecution to exclude the applicability of s 14 to Mr Yasso, it might try to do so by showing that one characteristic of the tradition as it stood on the date of the alleged offence was that it did not extend to gill netting. Where did the onus of proof lie?

In Chugg v Pacific Dunlop Ltd,[99] a case which, like the present, involved a prosecution before a magistrate, Dawson, Toohey and Gaudron JJ said:
[99](1990) 170 CLR 249.

“For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an ‘exception’), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch (1955) 91 CLR 512, at pp 519-520. The distinction does not depend on the rules of formal logic: Dowling v. Bowie (1952) 86 CLR 136, at p 147. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention ‘to impose upon the accused the ultimate burden of bringing himself within it’: Director of Public Prosecutions v. United Telecasters Sydney Ltd. (1990) 64 ALJR 181, at p 183; 91 ALR 1, at p 6. The intention may be discerned from express words or by implication. See Reg. v Edwards (1975) QB 27 and Reg. v. Hunt (1987) AC 352.”
…
Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined ‘upon considerations of substance and not of form’: Dowling v. Bowie, at p 140.
…
One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring and Lighterage Co. Ltd. v. Jacobsen (1945) 70 CLR 635, per Dixon J. at p 644. Such is ordinarily the case where, in the terms used in Reg. v. Edwards, at p 40, there is a prohibition on the doing of an act ‘save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities’. See Reg. v. Hunt, at p 375, where Lord Griffiths considered the statement from Reg. v. Edwards ‘an excellent guide to construction’. If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.”[100]

I approach the determination of the onus of proof on the basis set out in that passage.

[100]Ibid at p 257.

I gain no assistance from the form of the statute. Section 14 is not expressed either as an exception to s 84 or as a requirement the negativing of which forms part of the statement of the general rule embodied in s 84. Logically it might be either. In substance, as I have already found, its effect is to exclude the operation of s 84 on conduct involving the exercise of the rights conferred by the section.[101] Its subject matter is quite different from that of s 84. Its effect is not limited to excluding the operation of s 84 but extends to exclude the operation of other sections. It is located in a part of the Act remote from s 84. As to ease of proof of its elements, I agree with McPherson JA that it would ordinarily be much easier for a person to prove that he was an aborigine or a Torres Strait Islander within the meaning of the statute than for his opponent to prove that he was not. I also think that ordinarily it would be much easier to prove the existence of a particular aboriginal tradition or island custom than to prove the non-existence of any such tradition or custom. In so saying I take into account the cost of strictly proving the existence of a custom and the paucity of resources likely to be available to a defendant in a prosecution under the Act, but I do not think that factor can determine the outcome.
[101]Paragraph [124].

I think there is some analogy to be drawn between the present case and the case of Madsen v Western Interstate Pty Ltd.[102] In that case the Full Court held that a defendant accused of a breach of the state transport laws bore the onus of proving the facts necessary to engage the operation of s 92 of the Constitution if he wished to rely upon that section. Likewise, in Horne v Tweed River Transport Pty Ltd, Gibbs J, with whom Hanger and Stable JJ agreed, said:

“If the respondent’s use of the vehicle for the carriage of the goods was in the course of or for the purpose of interstate trade, the respondent would have committed no offence for, because of s 2 of the State Transport Act and s 92 of the Constitution, s 49 would not apply. The respondent bore the onus of proving the facts necessary to attract the protection of s 92, either directly or by way of s 2 of the State Transport Act (Madsen v Western Interstate Pty Ltd; Horne v Perry; Madsen v Tweed River Transport Pty Ltd and see also Colbert v Tocumwal Trading Pty Ltd; Day v Hunter and Red Land v Dyson).[103] The onus of course was to be discharged on the balance of probabilities.”[104]

[102][1963] Qd R 434.

[103]Citations omitted.

[104](1967) 61 QJPR 114 at p 117. I acknowledge that in the later decision of Allied Interstate (QLD) Pty Ltd v Barnes, the High Court expressly left the question open.

All of these considerations, and particularly the question of ease of proof, lead me to agree with McPherson JA that Mr Yasso bore the onus of proving all the elements of s 14 on the balance of probabilities.

Did he do so? In answering this question I think we should disregard the evidence given by Mr Hatfield in response to the prosecutor’s leading question in re‑examination and in response to the magistrate’s questioning when he was recalled after the close of the defence case. I hold that opinion because I think those answers carry very little weight; and because in my judgment to take them into account would deprive the trial of the element of fairness. On this basis the position at the end of the evidence was: there was a tradition of fishing among the Darumbal people; features of that tradition were that only Darumbal people could fish at Dadsons Beach, that nets could be used for fishing, and that nets might be up to about 50 m long; Mr Yasso took fish using such a net; Mr Yasso was entitled to a finding that he was a Darumbal person; the net in Mr Yasso's possession was a gill net; and the Darumbal-Noolar Murree Aboriginal Corporation for Land and Culture had banned the use of gill nets. That evidence established the existence of a tradition under which Mr Yasso took fish and did not establish that a feature of the tradition was a prohibition on the use of gill nets. In my judgment the proper finding was that Mr Yasso took the fish “under Aboriginal tradition” within the meaning of s 14 of the Act.

It follows that in my judgment the decision of the magistrate was correct.

The case involved some difficult questions of law and it is in the public interest that this court give guidance on the proper interpretation of s 14 of the Act. The decision of the District Court works an injustice on an unrepresented litigant. Those matters are enough to warrant granting leave to appeal.

Before parting with the case, I wish expressly to record two reservations. First, I am by no means persuaded that Mr Yasso was not a “native title holder” under the Native Title Act 1993. Both the magistrate and the District Court judge gave no consideration to a defence under s 211 of that Act because they held that there was no evidence that Mr Yasso was a native title holder. Proof of that fact would be necessary for that defence to be made out. “Native title holder” was relevantly defined under that Act as “the person or persons who hold the native title”. “Native title” meant

“the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.”

Rights and interests under that subsection included fishing rights and interests.[105] If it were necessary to decide the point, one would need to consider whether the Darumbal people, and hence Mr Yasso, were native title holders. What is clear is that the submission made to the magistrate, and upon which he apparently acted, that Mr Yasso was not a native title holder because “you only become a holder once the Federal Court has made a determination or an agreement's been reached … by consent and the Federal Court has okayed it” was wrong. A decision of the Federal Court on a native title application is declaratory of the existing position. If native title exists, it exists independently of the decision. As to whether a defence might have been available under s 211 of the Native Title Act 1993, I say nothing.

[105]Native Title Act 1993, s 223.

Second, were it necessary for me to consider s 22 of the Criminal Code, I would find it necessary to take into account the existence of not only s 14 of the Act but also s 211 of the Native Title Act 1993. The latter was the provision under which Mr Yasso claimed to be acting at the time he was intercepted - he even produced a laminated copy of the section from his vehicle to support his claim. In view of the complexities involved I prefer to express no opinion when I do not have to do so.

I agree with the orders proposed by the President.

CITATION:	Stevenson v Yasso [2006] QCA 40
PARTIES:	BRENDA STEVENSON (complainant/appellant/respondent) v RICCARDO DURANTE YASSO (defendant/respondent/applicant/appellant)
FILE NO/S:	CA No 96 of 2005 DC No 113 of 2003 MC No 88438 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	24 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2005
JUDGES:	McMurdo P, McPherson JA and Fryberg J Separate reasons for judgment of each member of the Court, McMurdo P and Fryberg J concurring as to the orders made, McPherson JA dissenting
ORDER:	1. Application for extension of time within which to appeal granted 2. Application for leave to appeal granted 3. Appeal allowed with costs to be assessed 4. Set aside the orders of the District Court of 25 February 2005 and instead order that the appeal under s 222 Justices Act 1886 (Qld) be dismissed with costs to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - where appellant applied for leave to appeal about two and half months out of time - where appellant's explanation for the delay was that the January holiday period made it difficult for him to access pro bono legal services - where possibility for confusion about when time began to run resulting from further order made by District Court judge - where answer to the question of whether in the interests of justice to grant the extension of time interlinked with merits of proposed appeal - whether an extension of time should be granted PROCEDURE - INFERIOR COURTS - QUEENSLAND - where appellant contends the District Court lacked jurisdiction and issue should have been determined in the Federal Court - where appellant is one of a number of claimants in an undetermined native title claim under the Native Title Act 1993 (Cth) pending in the Federal Court - whether the appellant's pending native title claim prevented the appellant being prosecuted for an offence under the Fisheries Act 1994 (Qld) in the Magistrates Court or the District Court hearing and determining an appeal from the Magistrates Court APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - JUDGE MISTAKEN OR MISLED - where appellant contends District Court judge erred in interpreting transcript evidence in the Magistrates Court - where appellant contends this error led District Court judge to err in determining other matters - where relevant part of transcript in the Magistrates Court was checked by the State Reporting Bureau after Court of Appeal hearing - whether any error in District Court judge's interpretation of transcript - whether District Court judge should have intervened in re‑examination of a witness PRIMARY INDUSTRY - FISH - OFFENCES - where appellant charged with unlawful possession of "commercial fishing apparatus" under s 84 Fisheries Act 1994 (Qld) ("the Act") - where appellant found not guilty of the charge in the Magistrates Court - where magistrate concluded that although the elements of the offence were made out the appellant was excused by s 14 of the Act as an Aborigine acting in the traditional way of an Aborigine taking fish by means of a net - where respondent successfully appealed to the District Court under s 222 Justices Act 1886 (Qld) - where District Court judge found that s 14 of the Act had no application for a charge under s 84 of the Act - whether s 14 of the Act has application to a charge under s 84 of the Act - whether s 84 of the Act applies to both commercial and non‑commercial fishing apparatus ABORIGINALS - CRIMES BY ABORIGINALS - CRIMINAL LIABILITY - where magistrate found that the appellant was able to rely on s 14 of the Act to excuse his possession of commercial fishing apparatus as he was an Aborigine and was acting in the traditional way of an Aborigine taking fish by means of a net - where District Court judge found that on the evidence the appellant was not an Aborigine - where District Court judge found that if the appellant was an Aborigine in order to rely on s 14 there needed to be evidence that he took fish under Aboriginal tradition and there was no such evidence - whether the appellant was an Aborigine - whether the appellant produced sufficient evidence that he was in possession of the net by way of Aboriginal tradition - whether the Court should attempt an a priori enumeration of what must be proved to establish Aboriginal tradition as defined in s 36 Acts Interpretation Act 1954 (Qld) - whether the definition of Aboriginal tradition is best worked out in the context of actual cases ABORIGINALS - GENERAL - APPLICATION OF LAW - where appellant contends that taking fish by means of a net is an Aboriginal tradition in accordance with s 14 of the Act - whether s 14 applies to modifications of Aboriginal traditions such as the use of modern fishing nets CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - where District Court judge found that the appellant failed to discharge the burden or proof on him under s 14 of the Act of adducing some evidence of his Aboriginality and of possession of the net by way of Aboriginal tradition so that the prosecution were not required to negative the operation of s 14 of the Act - whether the burden of proof under s 14 of the Act is required to be discharged on the balance of probabilities CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF LAW - where there was evidence that the appellant had honestly believed he was entitled to have possession of the net and use it for fishing because he had been given permission by an Aboriginal elder - whether on the evidence s 22 Criminal Code 1899 (Qld) could have application to the offence charged under s 84 of the Act - whether there was evidence sufficient to raise s 22 Criminal Code - whether the prosecution proved beyond reasonable doubt that s 22 Criminal Code had no application to the offence charged Native Title Act 1993 (Cth), s 211, s 224 Acts Interpretation Act 1954 (Qld), s 7(1), s 36 Criminal Code 1899 (Qld), s 1, s 22(2) District Court of Queensland Act 1967 (Qld), s 118(3) Fisheries Act 1994 (Qld), s 3, s 10, s 11, s 14, s 84, s 85 Fisheries Regulation 1995 (Qld), s 68, s 71, Sch 8, Sch 17 Justices Act 1886 (Qld), s 222 Aldrich v Boulton [2000] QCA 501; [2001] 2 Qd R 235, cited Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153, considered Basso-Brusa & Ors v City of Wanneroo [2003] WASCA 103; No 1140 of 2002, 14 May 2003 considered Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106; (2001) 123 FCR 62, considered Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, followed Derschaw v Sutton (1997) 17 WAR 419, considered Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594, considered Federated Carters and Drivers' Industrial Union of Australia v Motor Transport and Chauffeurs' Association of Australia (1912) 6 CAR 122, cited Federation Insurance Limited v Wasson & Ors (1987) 163 CLR 303, considered Garcia v National Australia Bank Ltd (1998) 194 CLR 395, considered Gibbs v Capewell (1995) 54 FCR 503, considered Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, considered Mabo v Queensland [No 2] (1992) 175 CLR 1, cited Mason v Tritton (1994) 34 NSWLR 572, considered Members of the Yorta Yorta Aboriginal Community v State of Victoria& Ors (2002) 214 CLR 422, cited Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562, considered Mott v Mott [1929] QWN 38, cited Muramats v Commonwealth Electoral Officer (WA) (1923) 32 CLR 500, cited Ofu-Koloi v The Queen (1956) 96 CLR 172, cited Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493, considered Palmer v Ostrowski [2002] WASCA 39; (2002) 26 WAR 289, considered Re Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267, cited R v Edwards [1975] QB 27, considered R v Hunt [1987] AC 352, considered R v Sparrow [1990] 1 SCR 1075, considered R v Waine [2005] QCA 312; CA No 70 of 2005, 26 August 2005, considered R v Zischke [1983] 1 Qd R 240, considered Shaw v Wolf (1998) 83 FCR 113, considered Vines v Djordjevitch (1955) 91 CLR 512, considered Walden v Hensler (1987) 163 CLR 561, considered
COUNSEL:	The applicant/appellant appeared on his own behalf A M Preston for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf C W Lohe, Crown Solicitor, for the respondent