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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Stevenson v Yasso [2006] QCA 40
Case
[2006] QCA 40
Decision Date
CaseChat Overview and Summary
The appellant, Stevenson, appealed against the decision of the District Court of Queensland, which had overturned a decision of the Magistrates Court that he was not guilty of possessing commercial fishing apparatus under s 84 of the Fisheries Act 1994 (Qld). The respondent, Yasso, had successfully appealed to the District Court under s 222 of the Justices Act 1886 (Qld) after being found not guilty in the Magistrates Court. The District Court found that the appellant was not an Aborigine and, therefore, s 14 of the Fisheries Act, which excuses an Aborigine acting in the traditional way of an Aborigine taking fish by means of a net, did not apply. The appellant argued that the District Court judge had erred in interpreting the evidence, and that the District Court lacked jurisdiction because of his pending native title claim in the Federal Court.
The central legal issues in this appeal were whether the District Court judge had erred in interpreting the evidence, whether the District Court had jurisdiction to hear the appeal given the appellant's pending native title claim, and whether s 14 of the Fisheries Act applies to a charge under s 84 of the same Act. Additionally, the court had to consider whether the appellant's application for an extension of time to appeal was justified and whether the District Court should have intervened in the re-examination of a witness in the Magistrates Court.
The Court found that the appellant's application for an extension of time to appeal was justified as the delay was due to the January holiday period, which made it difficult for him to access pro bono legal services. The Court also held that the District Court did have jurisdiction to hear the appeal, despite the appellant's pending native title claim in the Federal Court. In regards to the interpretation of s 14 of the Fisheries Act, the Court held that the District Court judge had erred in his interpretation of the evidence. The Court found that s 14 of the Fisheries Act applies to a charge under s 84 of the same Act, and that the appellant was able to rely on s 14 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.
The Court allowed the appeal, set aside the orders of the District Court, and dismissed the appeal under s 222 of the Justices Act 1886 (Qld) with costs to be assessed. The Court found that the appellant was an Aborigine and that he had produced sufficient evidence that he was in possession of the net by way of Aboriginal tradition. The Court held that the District Court judge should have intervened in the re-examination of a witness in the Magistrates Court.
Orders
Orders of the court
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