Walden v Hensler

[1987] HCA 54

HIGH COURT OF AUSTRALIA

Brennan, Deane, Dawson, Toohey and Gaudron JJ.

HERBERT WALDEN v. PETER BAXTER HENSLER

6 November 1987

Decisions

BRENNAN J. The appellant is an Elder of the Gungalida people who belong to the country around Burketown and Doomadgee in Queensland. Historically, they and other Aboriginal people were nomads, living off the land. White settlement came. The appellant's father did some work for a Mr Walden who owned a station in the area. Mr Walden gave the appellant's father rations of tea, sugar and flour for his family. He gave them too the name of Walden. When the rations cut out, the family would eat what was on the land. According to the appellant, they used to take emus, plain turkeys, kangaroos, goannas or snakes: bush tucker. The appellant used to go hunting with his father. The family walked through the bush carrying their swags. They walked to Burketown, where the appellant went to school for a month, and then to Doomadgee. They continued to eat bush tucker. When the appellant grew up, he married an Aboriginal woman whose mother was one of the Waany people. He went to live in Mount Isa in 1972 or thereabouts, but since then he has gone back to the country around Burketown and Doomadgee "a couple of times" a year for a month or so. Once or twice a week he has gone out from Mount Isa hunting in the bush for bush tucker. According to Aboriginal law, he should not kill more than is needed for food for his family. According to Aboriginal law, he or his family may capture a young bird for a pet but, when it grows up, it has to be let go because it belongs to the bush. He abided by that law. The appellant has had considerable contact with non-Aboriginal ways. Like many Aborigines, he appears not to have abandoned traditional Aboriginal ways but rather to have adjusted Aboriginal ways to the exigencies of life in a predominantly non-Aboriginal society.

2. On a Sunday in February 1984, the appellant, his wife and children were in the bush near a fishing hole on Carlton Hill station where the appellant had been working. He had got permission from the manager to go hunting. Late in the afternoon, he saw a plain turkey. He shot it and took it home to eat. Shortly afterwards, his son Peter saw a turkey chick, caught it and took it home as a pet. Plain turkeys (Eupoditis australis or bustards) are wild by nature. On the following Tuesday morning, Mr Hensler, an officer of the Queensland National Parks and Wildlife Service appointed under the Fauna Conservation Act 1974-1979 (Q.) ("the Act") as a fauna officer, called on the appellant and seized the carcass of the adult turkey and the live turkey chick. The plain turkeys, it transpired, were protected fauna under the Act. The appellant did not know this. Nor did he know that it was illegal for him to take or keep plain turkeys. He believed that he was entitled to do what he did, and that he had done nothing wrong.

3. I have taken these facts from the appellant's evidence and from Mr Hensler's evidence of what the appellant told him. This evidence was given without challenge to its truth in the Magistrates Court in Mount Isa during the hearing of a complaint charging the appellant with the keeping of prescribed protected fauna. An anthropologist, Mr Trigger, also gave evidence that in Aboriginal society a member of a clan had the right to take bush resources within and beyond the clan's own country, and that the practice of taking bush tucker was never forbidden - indeed, was sometimes encouraged - by "white authority". He said that Aboriginal people would find it extraordinary to be told that it is wrong or illegal to take bush resources. His evidence was accepted by the magistrate, who found, inter alia -
" It is clear that the defendant has taken a
variety of traditional food sources, including Australian Bustards, known as plain turkeys, during his life. He believed he was doing nothing wrong and I feel that he holds his, this belief honestly. Nobody has ever told him he was not to take bush tucker. No one has tried to stop him."

4. Nevertheless, the appellant was convicted, fined $100 and ordered to pay $260 by way of royalty, $30.50 court costs and $529 professional costs. It was ordered that, in default of payment, he be imprisoned for one month. All this for gathering food from his own country for his own family - as he and his people had been entitled to do and had done since before white settlement, and as he had never been stopped from doing and they had sometimes been encouraged to do by white authority. A comparison between the moral innocence of the appellant's conduct in gathering food for his family and the heavy financial burden of $919.50 which was imposed on him for doing so makes a mockery of justice. When that occurs, either the law or its application, or both, must be at fault. Justice cannot be mocked by a just law, justly applied. It would not have been surprising if a question had been raised by the appellant as to whether and how it came about in law that Aboriginal people had their traditional entitlement to gather food from their own country taken away, but that question was not raised. Counsel for the respondent submitted in this Court that "if tribal or customary law is to be applied in European courts, it is a matter for Parliament". That submission does not have to be considered for the appellant did not argue that tribal or customary law was applicable. The appellant's counsel was content to accept that the law governing the appellant's liability to conviction was to be found in the Act and in s.22 of The Criminal Code (Q.) ("the Code"). His submission was that, on a proper construction of s.22, the appellant was not criminally responsible for keeping the plain turkeys.

5. The appellant obtained an order to review the conviction and penalty, returnable before the Full Court of the Supreme Court. The Full Court discharged the order. This appeal is brought by special leave from the Full Court's judgment.

6. The offence for which the appellant was convicted is created by s.54(1)(a) of the Act, which reads -
" A person shall not take, keep or attempt to
take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act." The appellant had no licence, permit, certificate or other authority to take or keep fauna.

7. The penalty for contravention of s.54(1) is prescribed by s.54(2):
" A person who commits an offence against this
section is liable to a penalty of $2,000, and in addition to a penalty of twice the royalty payable on each fauna in respect of which the offence is committed." The appellant was prosecuted and convicted not for taking, but for keeping, fauna. However, it was not submitted that the appellant's criminal responsibility might turn on the difference between "taking" and "keeping". Statute apart, there would have been no doubt about the lawfulness of the appellant's keeping the plain turkeys: having the consent of the owner or lessee of Carlton Hill station to go hunting, he would have been entitled at common law to take into possession on the station birds which were wild by nature and fit for human food. As to the plain turkey chick, by taking it and keeping it in his possession, he would have acquired "by industry" what the old cases call "property qualified and possessory" in the bird: The Case of Swans (1591) 7 Co.Rep.15b, at p.17b (77 E.R.435, at p.438). And as to the carcass of the plain turkey which he killed, he would have acquired ownership of it in accordance with the law as stated by Lord Westbury L.C. in Blades v. Higgs (1865) 11 HLC 621, at p 631 (11 ER 1474, at pp 1478- 1479):

" ... when it is said by writers on the Common Law of England that there is a qualified or special right of property in game, that is in animals ferae naturae which are fit for the food of man, whilst they continue in their wild state, I apprehend that the word 'property' can mean no more than the exclusive right to catch, kill and appropriate such animals which is sometimes called by the law a reduction of them into possession. This right is said in law to exist ratione

soli, or ratione privilegii ... Property ratione soli is the common law right which every owner of land has to kill and take all such animals ferae naturae as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the soil. Property ratione privilegii is the right

which, by a peculiar franchise anciently granted by the Crown in virtue of its prerogative, one man had of killing and taking animals ferae naturae on the land of another; and in like manner the game, when killed or taken by virtue of the privilege, became the absolute property of the owner of the franchise, just as in the other case it becomes the absolute property of the owner of the soil."

Statute apart, if the appellant had not acquired absolute property in the plain turkey he had killed ratione privilegii or by reason of a usufructuary right of a similar kind, he would have acquired absolute property in it ratione soli by reason of the consent given by the "owner of the soil" to his hunting on the station. At common law, the appellant would have been entitled to keep both birds.

8. The Code does not alter the common law position. Plain turkeys in their wild state are not "property". The term "property" is defined in s.1 to include "every thing, animate or inanimate, capable of being the subject of ownership". The right to catch and kill is not a right of property in wild animals but an incident of the ownership of the soil. Nor are wild animals in the enjoyment of their natural liberty capable of being stolen, though their dead bodies are capable of being stolen: Code s.390. It follows that, apart from the provisions of the Act of which the appellant was ignorant, he was entitled by law to keep the birds which he had taken. But the Act changed the law. It vested the property in all fauna in the Crown (s.7) and prohibited the taking or keeping of fauna without a licence, etc. The Act eliminated any right which Aborigines or others might have acquired lawfully to take and keep "fauna" as defined in the Act, and any entitlement which Aborigines might have enjoyed at common law to take and keep fauna (assuming that such an entitlement had survived the alienation by the Crown of land over which Aborigines had traditionally hunted).

9. The criminal responsibility of a person who, not being the holder of a licence, etc., takes or keeps fauna in Queensland is governed by Ch.V of the Code by reason of the provisions of s.36 of the Code. Section 36, the last of the sections in Ch.V of the Code, reads:

" The provisions of this Chapter apply to all persons charged with any offence against the Statute Law of Queensland."

The application of Ch.V of the Code to a particular statutory offence can be excluded by a special statutory provision. However, in the absence of express words, the provisions of another statute will not readily be construed as implying the exclusion of Ch.V or any of its provisions. Chapter V contains the provisions which substantially correspond with and supplant, in relation to statutory offences under the law of Queensland, the common law requirements of mens rea. In common law States and Territories, the presumption that mens rea is an element of a statutory offence may be displaced not only by the express words of a statute but also - albeit not easily - by considerations relating to the subject matter or purpose of the statute creating the offence: Lim Chin Aik v. The Queen (1963) AC 160, at pp 173-174; Gammon Ltd. v. Attorney- General of Hong Kong (1985) AC 1, at p 14; He Kaw Teh v. The Queen (1985) 157 CLR 523. In Queensland, to exclude the application of Ch.V or one of its provisions to a statutory offence, s.36 must be repealed pro tanto. The test for determining whether Ch.V is excluded has been said to be more rigorous than the test for determining whether the common law presumption relating to mens rea has been displaced: Brimblecombe v. Duncan; Ex parte Duncan (1958) QdR.8, at pp 12,18-19; Hunt v. Maloney; Ex parte Hunt (1959) QdR 164, at pp 172,183 and cf. Geraldton Fishermen's Co-operative Ltd. v. Munro (1963) WAR 129, at p 133. Those cases concerned the exclusion of ss.23 and 24 of Ch.V, but s.36 applies equally to all the provisions of Ch.V and there is no reason to adopt a different approach with respect to s.22. Whether or not there is a difference between the common law criterion for excluding mens rea from application to a statutory offence and the Code criterion for excluding Ch.V or one of its provisions, the latter criterion is not satisfied unless the statute creating the offence effects the exclusion expressly or by necessary intendment. Chapter V is not excluded merely on the ground that its application would make the object of the statute creating the offence more difficult of attainment.

10. Section 22 provides:
" 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. But a person is not criminally responsible, as for an offence relating to property, for an act
done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud." Section 54 of the Act does not expressly or by necessary intendment exclude the application of the second paragraph of s.22 of the Code, assuming that s.22 on its true construction applies to an offence created by s.54.

11. If s.22 applies to offences created by s.54, it is a question of fact whether the appellant kept the plain turkeys in the exercise of an honest claim of right to do so. In the circumstances outlined above, it clearly appears that the appellant did honestly claim the right to keep the birds specified in the charge. To raise a claim of right to do a prohibited act or make a prohibited omission, it is not necessary when the act is done or the omission is made formally to state either the claim or its basis. In Mitchell v. Norman, Ex parte Norman (1965) QdR.587, Gibbs J. said (at p 594):
" The expression 'claim of right' (where claim is
used as a noun) is well known in the criminal law, and it is perfectly clear that there can be a claim of right within the meaning of such statutory provisions as s.22 of The Criminal Code or s.1 of the English Larceny Act 1916 although there is no formal or express declaration of the existence of a right. For example a man who takes another's chattel, honestly believing it to be his own and that he is entitled to take it, takes it 'in the exercise of an honest claim of right' within the meaning of s.22, and does not take it 'without a claim of right made in good faith', within the meaning of s.1 of the Larceny Act, even if he says nothing to anyone at the time when he takes it." Nor, as his Honour pointed out (at pp.594-595) is it necessary that the right claimed be one recognized by law:

" It is quite clearly established that there can be a claim of right within such sections as s.22 of The Criminal Code and s.1 of the Larceny Act 1916 although the right asserted is one which is unfounded in law or fact - see R. v. Bernhard (1938) 2 KB 264, Clarkson v. Aspinall, Ex parte Aspinall (1950) St.R.Qd 79, at p 89 and Reg. v. Pollard".

In Reg. v. Pollard (1962) QWN 13 Gibbs J., in a judgment in which Stanley and Hanger JJ. concurred, said (at p 29):

" An accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing. A belief that he may acquire a right in the future is not in itself enough." " It is not to the point that the accused had no right to take the vehicle. If he had honestly believed that he was entitled to take it, or if the jury had a reasonable doubt whether he had such a belief, he should have been acquitted, however wrong his belief may have been, and however tenuous and unconvincing the grounds for it may seem to a judge."

12. In this case, the appellant's keeping of the carcass and the chick was clearly consistent with his honest belief that he was entitled to do so. As the right claimed does not have to be a right recognized by the law of Queensland, the appellant's belief in his entitlement according to Aboriginal law and tradition to keep the carcass and the chick would have sufficed to raise an honest claim of right in the absence of any knowledge that the entitlement claimed had been overridden by the law of Queensland. In the circumstances of the present case, the law of Queensland prior to the coming into force of the Act would have recognized the appellant's right to take the plain turkeys and to keep the birds which he had taken, a right which might have been recognized consistently with any entitlement by Aboriginal law or tradition to hunt for, take and keep bush tucker and plain turkey chicks. Although, on the facts of the case, the appellant had kept the birds in the exercise of an honest claim of right to do so, a claim of right does not avail the appellant unless s.22 on its true construction applies to offences created by s.54. That is the critical question. It is a question of law.

13. The chief purpose of the criminal law is to deter those who are tempted to breach its provisions. If that purpose were limited to providing immediate deterrence, the first paragraph of s.22 would cast the net of criminal liability too widely, for the prescription of a penalty for engaging in prohibited conduct cannot deter a person who is about to engage in that conduct and does not know that the conduct attracts a penalty. Nevertheless, the width of the first paragraph works no injustice when the law prescribes a penalty for conduct which is generally regarded as offensive or otherwise immoral and deserving of punishment. There is no injustice in punishing a murderer who is unfamiliar with the law of homicide provided, of course, he is of sound mind when he commits the crime. But when a law proscribes conduct which an ordinary person without special knowledge of the law might engage in in the honest belief that he is lawfully entitled to do so, the secondary deterrent purpose - that is, the purpose of educating both the offender and the community in the law's proscriptions so that the law will come to be known and obeyed - must be invoked to justify the imposition of a penalty for breach. In such a case, care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education. The second paragraph of s.22 restricts the net of criminal responsibility and avoids the real risk of injustice which would arise if the first paragraph of s.22 were applied to offences relating to property.

14. In the cases falling within the second paragraph of s.22 (to which I shall hereafter refer as "s.22" for the sake of brevity) a person who has done or omitted to do certain acts in exercise of an honest claim of right is wholly exempted from liability to a criminal penalty. Section 22 applies only to "an offence relating to property". Prosecutions for offences relating to property often raise difficult questions of private law to which members of the community without special knowledge and special skills cannot be expected to know the answer. To render a person liable to punishment for an offence relating to property when, under a mistake of law, he acts honestly claiming a right to do what he does and when he has no intention to defraud would make the criminal law unjustly oppressive: it would expose him to the peril of conviction for an offence because of a legal mistake about his private rights.

15. Section 22 introduces into Ch.V a principle similar to a "defence" (the term is inaccurate but is convenient shorthand) available at common law in cases of larceny, robbery and certain statutory offences. It does not follow that s.22 has the same application as the common law defence, for they do not operate in precisely the same way (but cf. Thomas v. The King (1937) 59 CLR 279, at pp 305- 306, where Dixon J. expressed the opinion that s.22 stated the common law with complete accuracy). Because of the difference in operation, the offences to which the common law defence applies do not necessarily correspond with the offences to which s.22 applies. The orthodox view of the common law was stated by Stephen, History of the Criminal Law of England, (1883), vol.3, ch XXVIII, p 124:

" Fraud is inconsistent with a claim of right made
in good faith to do the act complained of. A man who takes possession of property which he really believes to be his own does not take it fraudulently, however unfounded his claim may be. This, if not the only, is nearly the only case in which ignorance of the law affects the legal character of acts done under its influence." In cases of robbery and larceny, the existence of an honest claim of right to take property in the manner and circumstances in which it is taken precludes a finding that the property is taken animo furandi: 1 Hale P.C.508,509. Thus, in R. v. Hall (1828) 3 Car &P 409 (172 ER 477), a poacher who had set three wires in one of which a pheasant was caught threatened violence to a gamekeeper who took possession of the wires and the pheasant. The poacher was indicted for robbery of the gamekeeper. Vaughan B. said (at p 409 (p 478)):

" I shall leave it to the Jury to say whether the prisoner acted on an impression that the wires and pheasant were his property; for ... if the Jury think that he took them under a bona fide impression that he was only getting back the possession of his own property, there is no animus furandi, and I am of opinion that the prosecution must fail."

And see Reg. v. Reed (1842) Car &M 306 (174 ER 519); Reg. v. Boden (1844) 1 Car &K 395 (174 ER 863) and Reg. v. Wade (1869) 11 Cox CC 549.

16. The availability of a defence of honest claim of right is not limited at common law to offences by which the offender obtains possession of property. The defence is available when the offence relates to the damaging or destroying of property, and contains a mental element which would be negated by the existence of an honest claim of right. In Reg. v. Day (1844) 8 JP 186 four sheep had strayed onto the prisoner's land. He had threatened to injure or destroy them when their owner refused compensation. He cut the sheep and was charged with "unlawfully and maliciously maiming and wounding four sheep". Lord Abinger C.B. directed the jury that it was no offence "for a man to do an act which he conceived himself, however erroneously, to be justified by his rights in carrying into execution". In Taylor v. Newman (1863) 8 LT 424, a neighbour's pigeons had flown onto the prisoner's land and picked out sown seed. The prisoner complained, threatening to destroy the pigeons if they did the same thing again. The pigeons returned. The prisoner fired one shot and they rose, a second shot and he killed a pigeon. After conviction for an offence of "unlawfully and wilfully" killing a pigeon, the conviction was quashed, seemingly on the ground that a claim of right negated what Mellor J. called "a wilful and wanton intention". Blackburn J. construed the section creating the offence "in connection with the rest of the statute which applies to larceny" and it seems that his Lordship regarded the offence as containing a mental element similar to the mental element in larceny, for he said (at p.425):
" the farmer who was protecting his crops, and who
really thought he was doing a lawful act, cannot be said to have unlawfully killed the bird."

17. The defence may be available, it seems, even though the infringing of the proprietary rights of another is not an element of the offence. In Reg. v. Twose (1879) 14 Cox CC 327, there is a brief report of a ruling by Lopes J. on an indictment charging a prisoner with having set fire "wilfully and maliciously" to some furze growing on a common. Persons living near the common had occasionally burnt the furze to improve the growth of the grass. Lopes J. ruled that, if the prisoner set fire to the furze "thinking she had a right to do so", that would not be a criminal offence. See also Smith v. Barnham (1876) 34 LT 774 per Bramwell B. The defence may be available also in cases where the gist of the offence is an injury to a neighbouring property by use of the offender's own property. In Reg. v. James (1837) 8 Car &P 131 (173 ER 429) workmen employed by a mine owner had stopped up the airway to an adjoining mine, having been instructed to do so by their employer. It was an offence to obstruct an airway of a mine but it was necessary to prove that the act was done maliciously. Lord Abinger said, at p.133 (p.430):

" if these men acted bona fide in obedience to the orders of a superior, conceiving that he had the right which he claimed, they are not within this Act of Parliament."

And in Reg. v. Matthews and Twigg (1876) 14 Cox CC 5 where the prisoners were charged with a similar offence, Brett J. ruled (at p 7):

" I think that the act charged must be done not only wilfully, but maliciously, that is to say, with a wicked mind, and if it is done under a bona fide claim of right it is not done maliciously according to our criminal law."

In Reg. v. Langford (1842) Car &M 602 (174 ER 653), on the trial of prisoners charged with an offence that being riotously assembled they unlawfully demolished a house, Patteson J. directed the jury that a bona fide claim of right to demolish the house would be inconsistent with the existence of a "wrong motive" and that a wrong motive was essential to criminal liability. In all of these cases, a claim of right was admitted to negate a mental element in the offence charged. At common law, the defence is applicable to any offence the mental element of which is negated by the existence of an honest claim of right to do the prohibited act or make the prohibited omission.

18. When the common law defence was reformulated for the purposes of the Code, it was given a different operation. Section 22 operates to preclude criminal responsibility for an act done or omitted to be done whether or not there is a mental element in the offence charged which would be negated by an honest claim of right, but only if the offence is "an offence relating to property". Section 22 operates directly on the act or omission the doing or making of which would otherwise render a person liable to punishment: see the definition of "offence" in s.2 of the Code. Thus, in Reg. v. Pollard s.22 was held to apply to an offence created by s.408A of the Code - unlawfully using a motor vehicle "without the consent of the person in lawful possession thereof" - an offence which did not contain a mental element that would be negated by an honest claim of right. (In that case there was no mistake of fact as to the absence of consent.) Section 22 has a wider operation than the common law defence of honest claim of right in that it may apply to an offence whether or not the offence contains a mental element that is negated by an honest claim of right; it has a narrower operation than the common law defence in that it applies only to offences which are offences relating to property, a difference which Philp J. noted in Anderson v. Nystrom (1941) St R Qd 56, at pp 69-70.

19. In Pearce v. Paskov (1968) WAR 66, Virtue J. found in Pt VI of the Code offences which exhibited the character of an "offence relating to property". He said (at p 72):
" Part VI of the Criminal Code is headed
'Offences relating to property and contracts', and I have no doubt that the phrase 'offences relating to property' in s.22 should be construed as applying exclusively to offences of the character of those defined in that Part of the Code. These offences can be classified under the headings of wrongful or fraudulent interference with the property of others which involve deprivation of or interference with the proprietary or possessory rights of the true owner or person in possession, or acts involving destruction or damage to the property of others. I consider that such a construction is supported by the provision that the existence of an intent to defraud would deprive a defendant of the benefit of the protection." The offences that are defined in Pt VI of the Code which might be marshalled under the category of offences relating to property have in common the characteristic that an element of the offence is either the causing of another to part with property or the infringement of another's right over or in respect of property. But does s.22 apply only to offences which exhibit that characteristic? Or is it sufficient to attract the operation of s.22 that the relevant act or omission affects in some way a thing which answers the description of "property" in s.1 - for example, by destroying, damaging, using, disposing of or otherwise dealing with property or rights over or in respect of property? If s.22 were to be understood as applying to any act or omission affecting property, it would have an operation far wider than has been attributed to it in Queensland thus far (see Olsen v. The Grain Sorghum Marketing Board, Ex parte Olsen (1962) QdR 580) and far wider than the common law defence from which it was derived. The wider interpretation of s.22 would put a premium on ignorance of the general criminal law. Contrary to the law's intent, it would furnish a disincentive to the dispelling of ignorance as to the provisions of the criminal law governing the destroying, damaging, using, disposing of or otherwise dealing with anything which answers the description of property. A common law right over or in respect of property, whether actually possessed or mistakenly claimed, would override any provision of the general criminal law relating to property of which the person claiming the right was ignorant, though the provision in question did not relate to the rights of any other person over or in respect of the property. The wider interpretation unduly subverts the capacity of the criminal law to serve the public interest, for it would go far towards frustrating its broad educative and deterrent function (especially in relation to statutes creating regulatory offences). On the other hand, it is understandable that s.22 should operate to suspend the sanctions which the criminal law imposes for conduct which causes another to part with property or which infringes another's rights over or in respect of property when the offender honestly believes that he is entitled to engage in that conduct by reason of a right he mistakenly believes himself to have. The narrower interpretation of s.22 acknowledges that, while a person's ignorance of his private rights should not expose him to criminal punishment for what he does or omits to do under an honest mistake as to those rights, it is necessary in the public interest to leave the first paragraph of the section to operate generally over the criminal law. It is therefore necessary to give to s.22 the narrower interpretation, holding that it applies 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 is an element. So understood, does s.22 apply to any offence created by s.54 of the Act?

20. Leaving aside for the moment s.7 of the Act, s.54 does not create any offence in which there is an element of causing another to part with property or of infringing the rights of another over or in respect of property. Leaving aside s.7, a wild animal in its state of natural liberty is not "property" while it remains in that state. The gist of the offences created by s.54 is the physical destruction or control of fauna, irrespective of any rights over or in respect of fauna which might be vested in any person. The acts prohibited by s.54 are not defined as having the consequence of infringing another's rights. It may be that, by reason of s.7, any act which is done in contravention of s.54 will infringe the rights of the Crown, but infringement is not an element of any offence created by s.54. It is immaterial for the purposes of s.54 whether or not fauna is the property of the Crown (or, after an amendment of the Act in 1984, of an "authorized person": see s.7(1A)). Standing alone, s.54 does not create an offence relating to property.

21. Does the existence of s.7 turn an offence created by s.54 into an offence relating to property? I think not. If an infringement of the Crown's rights in protected fauna is not an element of the offences created by s.54, the vesting of such rights in the Crown does not add the qualifying element to the offence. Section 54 has the same meaning and effect whether or not regard is had to s.7: it is a provision calculated not to protect the Crown's or any other person's rights over or in respect of fauna but to protect fauna from destruction or control. Section 54 may be compared and contrasted with s.468 of the Code - one of the provisions in Pt VI - which prohibits the wilful and unlawful killing, maiming or wounding of "any animal capable of being stolen". Apart from any difference in meaning resulting from the quoted phrase, s.468 appears superficially to have a textual similarity to s.54 of the Act. However, the appearance of similarity is dispelled when the meaning of "unlawful" is ascertained. "Unlawful" is defined for the purpose of s.468 by ss.458 and 459 in terms which import into the offence created by s.458 an element either of causing injury to another's property or of defrauding another. Section 54 of the Act contains no such element. As it does not create any offence relating to property, s.22 does not apply to it.

22. Subject to the provisions of s.657A of the Code to which reference will presently be made, it would be necessary to affirm the conviction.

23. That conclusion requires that consideration be given to the sentence. Although this Court does not generally grant special leave to appeal to review a sentence merely on the ground that the sentence is excessive, it may grant special leave when there is a gross violation of sentencing principles which ought to have guided the sentencing discretion. This case falls within the exception.

24. The Full Court upheld the magistrate's order which imposed a fine of $100 and in addition a penalty equal to twice the applicable royalty. In this, the Full Court followed an earlier decision of that Court in Wilkinson v. Cutmore, Ex parte Wilkinson (1976) QdR 62 where it was held that s.54(2) as it then stood made mandatory a penalty of double royalty in addition to any discretionary fine. That conclusion was thought to be dictated by the judgment of this Court in Byrne v. McLeod (1934) 52 CLR 1 where the Court considered a provision which prescribed the penalty for a wilful or fraudulent attempt to avoid tax to be a discretionary fine "and in addition" treble the tax avoided or attempted to be avoided. A majority of the Court held that treble tax was a mandatory penalty to be added to the discretionary fine. But s.54(2) is differently expressed: it declares that a person who commits an offence against s.54 is "liable to a penalty of $2,000, and in addition to a penalty of (double) royalty ...". When a penalty is expressed to be in addition to another penalty and both are stated to be penalties to which a person who commits an offence "is liable", the cumulative penalties define the maximum liability; neither of the component penalties is a minimum. Section 54(2) simply furnishes the formula by reference to which the maximum pecuniary penalty for an offence against that section is ascertained. Byrne v. McLeod was, of course, decided on a different statute. It contains no principle which determines the construction of a provision expressed in the terms of s.54(2).

25. A related but further error in sentencing principle appears in the consideration given to the provisions of s.657A of the Code. That section provides:
" (1) Where a person charged before a Court or
justices has been found guilty of or has pleaded that he is guilty of an offence punishable by that Court or those justices and the Court thinks or the justices think that having regard to - (a) his character, antecedents, age, health

and mental condition;

(b) the trivial nature of the offence; (c) the extenuating circumstances under which the offence was committed; and

(d) any other matter that the Court or justices think it proper to consider,

it is not expedient to inflict any punishment or any punishment other than a nominal punishment the Court or justices may, without recording a conviction, make an order - (e) discharging the offender absolutely; or (f) discharging the offender conditionally upon his entering into a recognizance, with or without sureties, in such sum as the Court thinks or the justices think fit to be of good behaviour and to appear for conviction and sentence when called upon at any time during such period not exceeding three years as is specified in the order.

(2) ... (3) Where an order is made pursuant to this section, the Court or justices may nevertheless make any other order (not being an order that imposes a penalty) that the Court or justices could lawfully make had the offender been convicted.

(4) ... (5) ... "

In considering whether the "nature of the offence" in the present case was "trivial", a majority of the Full Court (Connolly J. with the concurrence of de Jersey J., Thomas J. expressing no opinion) said that "offences in relation to Bustards, carrying as they do a relatively large royalty, cannot be regarded as trivial". That view, if it be right, excludes the possibility of an order under s.657A. But s.657A is expressed to apply to any offence within the jurisdiction of the sentencing court. As s.657A is expressed in general terms and therefore applies to a wide variety of offences in the criminal calendar attracting various maximum penalties (excepting, perhaps, offences in respect of which mandatory sentences are prescribed) triviality cannot be determined by reference to the maximum penalties prescribed. If that were the criterion of triviality, a division would be created between offences to which s.657A applies and offences to which, despite the generality of its terms, it does not. Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty. If it had been right to construe s.54(2) as requiring the imposition of a penalty of double royalty in addition to any discretionary fine, it might not have been open to the magistrate to make an order discharging the appellant under s.657A. But, as that construction of s.54(2) was erroneous, there was no impediment to the application of s.657A. Its application was not properly considered, though the circumstances of the case called for its consideration. The sentence imposed on the appellant must therefore be set aside. Ordinarily, for reasons which I explained in Neal v. The Queen (1982) 149 CLR 305, at pp 322-323, I would think the appropriate order to be that the matter of sentence be remitted for reconsideration by the Full Court. But this is a case where, on the facts appearing in the record of proceedings, I can see no legitimate ground for abstaining from making an order under s.657A.

26. To deprive an Aboriginal without his knowledge of his traditional right to hunt for bush tucker for his family on his own country and then to convict and punish him for doing what Aborigines had previously been encouraged to do would be an intolerable injustice. It adds the insult of criminal conviction and punishment to the injustice of expropriation of traditional rights. It can and should be avoided by discharging the appellant absolutely under s.657A.

27. As to the magistrate's order for the payment of costs I agree with the order proposed by Deane J. I would add a further reason to those which his Honour gives in relation to professional costs. In a case of this kind, where there is no moral blame attached to the commission of the offence, where the object of the prosecution is to educate the offender and the public in obedience to the law which has been contravened, and where the defendant is not engaged in an activity or business that is regulated by laws about which he might fairly be expected to make enquiry, it is often appropriate - and it is appropriate in this case - that the costs of conducting the prosecution should be borne by the public purse rather than by the person who honestly and in ignorance contravenes the law. I agree also with Deane J. that there should be no orders for costs in the Full Court or in this Court.

28. I would therefore allow the appeal, set aside the judgment of the Full Court and in lieu thereof make absolute the order to review, quash the conviction and order of the magistrate and in lieu thereof discharge the appellant absolutely pursuant to the provisions of s.657A(1) of the Code and order that he pay within 30 days of this judgment the amount of $30.50 costs of the Magistrates Court at Mount Isa and that that amount be recoverable by execution against his goods and chattels.

DEANE J. The appellant was charged in the Magistrates Court at Mt. Isa with an offence against s.54 of the Fauna Conservation Act 1974 (Q.) ("the Act") in that he "did keep prescribed protected fauna, namely 2 Australian Bustards (Eupoditis australis), when (he) was not the holder of a licence, permit certificate or other authority granted and issued" under the Act. He was convicted and ordered to pay penalties totalling $360 and court and professional costs totalling $559.50. It was ordered by the learned magistrate that, if default were made in payment of those amounts within the time allowed for payment (six months), the appellant be imprisoned for one month. An appeal by the appellant to the Full Court of the Supreme Court of Queensland (Connolly, Thomas and de Jersey JJ.) against his conviction and sentence was unanimously dismissed. The appellant now appeals to this Court from that decision of the Full Court.

2. It is common ground: that the appellant was not the holder of a licence, permit, certificate or other authority granted or issued under the Act; that the appellant took and kept two Australian bustards or, as they are commonly known, plain turkeys; and that bustards were, at relevant times, prescribed protected fauna for the purposes of the Act. One of the two bustards was an adult bird which the appellant killed and took for food for himself and his family. The other was a chick which the appellant took alive for a pet for his son. The substantive defence propounded on his behalf was and is that he was acting "in the exercise of an honest claim of right and without intention to defraud" within the meaning of s.22 of the Criminal Code (Q.) ("the Code").

3. Section 22 of the Code provides:
"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.

But a person is not criminally responsible, as for an offence relating to property, for an act
done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."

On the findings of the learned magistrate, the appellant was acting honestly and without intention to defraud. It is not disputed that the bustards were "property" for the purposes of s.22; they were "property of the Crown" (Act, s.7). Nonetheless, a preliminary question arises, in relation to the appellant's defence under the section, whether the offence of taking or keeping prescribed protected fauna in contravention of s.54 of the Act is "an offence relating to property". If that preliminary question be answered in the affirmative, the further question arises whether, in keeping the bustards, the appellant was acting "in the exercise" of a relevant "claim of right" which exonerates him from criminal responsibility "as for" that offence. It is convenient to turn at once to a consideration of the preliminary question.

4. In Thomas v. The King (1937) 59 CLR 279, at pp 305-306, it was said by Dixon J. that s.22 of the Code states the common law "with complete accuracy". The comprehensiveness of his Honour's statement is, however, open to question (see, e.g., per Philp J. (E.A. Douglas J. agreeing), Anderson v. Nystrom (1941) St R Qd 56 at pp 69-70). Be that as it may, the section plainly had its origin in, and is to be construed in the context of, the common law (see the Explanatory letter from Sir Samuel Griffith to the Attorney-General which accompanied the Draft of a Code of Criminal Law (1897), the note to s.24 of the Draft Code and per Stable J., Olsen v. The Grain Sorghum Marketing Board (1962) QdR 580, at p 592). It is arguable that, viewed in the context of the common law, the reference in the second paragraph of s.22 to "an offence relating to property" should be narrowly construed as referring to an offence involving an element of interference by the person charged with rights, be they proprietary or possessory, of another in relation to property (cf. per Virtue J., Pearce v. Paskov (1968) WAR 66, at p 72 and note the grouping of offences of this kind in various chapters of Part VI of the Code under the general classification of "Offences relating to property"). On balance however, it seems to me that the reference in s.22 to "an offence relating to property" should not be so narrowly construed and that the offence of which the appellant was convicted, namely the offence of keeping certain property without any relevant statutory licence or other authority, is properly to be described as such an offence for the purposes of that section. That being so, it becomes necessary to consider whether the act of keeping the two bustards was an act done by the appellant with respect to the property "in the exercise of an honest claim of right" for the purposes of that section.

5. The phrase "honest claim of right" has no defined meaning for the purposes of the Code. Its connotation in s.22 must be determined in the context of the opening provision of that section that ignorance of the law does not of itself afford any excuse for an action or omission which would otherwise constitute an offence and against the background of general common law principle to that effect. Plainly, the fact that a person can honestly say that he thought he was entitled to do the relevant act because he was unaware that it was proscribed by the criminal law does not suffice to provide him with a defence of honest claim of right under s.22. Nor does an honest belief of some special entitlement to do the particular act with respect to property necessarily constitute such a defence. An honest belief of a special entitlement to do the act with respect to the property, such as belief of ownership, will only constitute a defence under s.22 of the Code if that entitlement would, if well-founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know (see, generally, Adams, Criminal Law and Practice in New Zealand, 2nd ed. (1971), pp.24-26). In other words, it is not to the point to establish an honest belief of a special relationship with property which, even if it existed, would not constitute an answer to the offence charged.

6. Thus, for example, it would be irrelevant to a charge of driving a motor vehicle on a public road without a driver's licence to assert a genuine belief of entitlement to do what was done in that the authority of the owner of the motor vehicle was believed to have been obtained. In such a case, even if the authority of the owner were established, it would not constitute a defence to the charge of negligent driving. Again, genuine belief of some special entitlement to property of a particular kind (e.g. narcotic drugs) will not suffice to avoid criminal responsibility for a breach of a general proscription of selling, buying or possessing such property if that general proscription is aimed at preventing all traffic or all unlicensed traffic in property of that kind. In such cases, the absence of knowledge of criminality flows, upon analysis, merely from ignorance of the applicable provisions of the criminal law and the honest belief that what was done with respect to property was done with the authority of the owner or, for that matter, in the exercise of actual rights of ownership is simply irrelevant to the alleged offence which can be committed by owner and stranger alike. In contrast, the existence of an honest claim of such authority or ownership would provide the basis of a defence under s.22 of the Code to a charge of larceny of the relevant property since such authority or ownership would, if it existed, constitute an answer to the charge.

7. It should be apparent from the foregoing that the answer to the question whether an honest belief of entitlement to act in a particular way with respect to property constitutes a defence of honest claim of right under s.22 of the Code can only be ascertained by reference to the elements of the alleged offence. If actual knowledge of criminality is an element of the offence, a defence of claim of right will be available to negate that element of the offence if the claim of right results in the absence of such knowledge. In the ordinary case where knowledge of the criminal law is assumed however, a defence of claim of right will not be well-founded unless what was claimed or believed would, if it were the fact, have negatived an element of the actual offence or provided a good defence to it. Closer to the present case, the point can be yet again illustrated by reference to possible offences involving the taking of property from its natural environment. An example of such a possible offence is that of mining in a natural forest. If the offence charged be the extraction of minerals owned by the Crown or another person in breach of the provisions of royalty legislation, the existence of an honest belief of ownership of the relevant minerals would found a defence of claim of right under s.22 of the Code in that, if the belief were well-founded, the offence would not have been committed. On the other hand, if the mining is in breach not of royalty provisions but of a general conservation law intended to protect the forest from all mining activities, including any mining activities of the owner of the minerals, an honest belief of ownership of, or of some more limited claim to, the minerals could not constitute a defence of claim of right under s.22 for the reason that, even if it had existed, ownership of, or the more limited claim to, the minerals would be simply irrelevant. In such a case, ignorance of criminality flows not from the honest belief of ownership or of some more limited entitlement but from ignorance of the relevant criminal law. So it is in the present case.

8. Section 7(1) of the Act provides that "(a)ll fauna, save fauna taken or kept during an open season with respect to that fauna, is the property of the Crown ...". That provision provides a basis of the royalty system which Part XI of the Act establishes. If the offence of taking or keeping fauna without authority under the Act, which s.54 creates, could properly be seen as an incident of that royalty system or as designed to protect the property rights of the Crown in fauna, there would be force in the view that an honest belief of ownership of the fauna or of the existence of traditional hunting rights in relation to it might constitute the foundation of a defence of "claim of right" under s.22 of the Code. Close examination of the Act as a whole discloses, however, that so to see the offence created by s.54 would be to misunderstand both the nature and purpose of that section.

9. The provisions designed to ensure the observance of the Act's royalty system are to be found in Part XI itself: s.68 imposes liability to pay the prescribed royalty; s.70 provides for civil proceedings to recover the amount of royalty; s.71 authorizes seizure of fauna until royalty is paid; s.69 provides that a person who fails to pay royalty that he is liable to pay under the Act is guilty of an offence. Section 54 is in Part IX which is concerned with the general regulation, for conservation purposes, of the keeping and protecting of fauna, including fauna taken before the commencement of the Act. The provisions of s.54 and the other sections in Part IX are neither based upon nor restricted by reference to the royalty system which the Act establishes or the proprietary rights of the Crown which the Act proclaims. In its context in Part IX, s.54 is properly to be seen as a general conservation provision for the protection of "fauna in its habitats" (see Act, long title). Neither failure to pay royalty, which is an offence under Part XI (s.69), nor interference with the proprietary or possessory interest of the Crown in fauna constitutes an element of the offence created by s.54. Both the fact that the prescribed amount of royalty has been paid and the identity of the holder of any proprietary or possessory rights in the fauna are irrelevant to an offence against the sub-section. Indeed, the existence of a genuine belief of ownership or other rights in relation to the fauna is no more relevant to the offence of taking or keeping fauna in contravention of s.54(1) than was ownership of the grain sorghum to the offence of selling or buying grain sorghum in Olsen's Case. Put differently, the general words of s.54(1) are such as to make the taking or keeping of prescribed fauna by a person an offence regardless of whether the person is exercising what would, if the criminal law creating the offence had not been enacted, rights of ownership or traditional rights of hunting with respect to that fauna. That being so, a genuine claim of ownership or hunting rights with respect to the fauna no more constitutes the basis of a defence of claim of right than does a genuine belief by a drug trafficker of ownership of the drugs in which he deals. In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights. Accordingly, the defence of honest claim of right was not available to the appellant in the circumstances of the present case.

10. There remains for consideration the appeal in relation to penalty. The appellant is an Aboriginal. He is an elder of his people. He was acting in accordance with ancient tribal custom when he took and kept the two bustards. His was not, however, a paradigm case of ignorance of the existence of an imposed legal system. While he was unaware of the particular proscription, under a conservation law, of taking or keeping bustards, he was plainly aware that ancient Aboriginal tribal rights and traditions had been overlaid by the requirements of the imposed law of Queensland. He had worked in European employment. He was the occupant of the home in suburban Mt. Isa in which the remains of the adult bustard were found in a refrigerator. He had obtained permission to hunt on the land where he took the bustards from the manager (a Mr Logan) of the cattle station of which it formed part. He hunted not with the traditional weapons of the Aboriginal people but with a twenty-two magnum.

11. Nonetheless, the case does exemplify the practical injustice which can result from the clash of the established customs of an indigenous people and the demands of imposed laws, even laws enacted for undeniably laudable purposes such as the conservation of native fauna. The acts which constituted the "offence" under s.54(1) were done by the appellant in accordance with the established custom of his people: the adult bird which he killed was for food for himself and his dependants; the chick was taken to be raised as a pet and then returned to the bush. Having obtained Mr Logan's permission to hunt on the land, he was quite unaware that he was acting in breach of any law.

12. The penalty (including double royalties) and costs which the appellant was ordered to pay by the learned magistrate totalled $919.50. In default of payment within the time allowed, he was sentenced to be imprisoned for a month. In all the circumstances of the case, that result seems to me to represent an unduly harsh punishment. The question arises whether the injustice which seems to me to be involved has resulted from the inflexibility of the law or from error on the part of the learned magistrate.

13. Of the total amount of $360 which the appellant was ordered to pay by way of penalty, $260 represented a penalty of double royalty. In ordering the appellant to pay that amount, the learned magistrate made clear that he considered himself to be bound by the decision of the Full Court of the Supreme Court in Wilkinson v. Cutmore; Ex parte Wilkinson (1976) Qd R 62 to impose a penalty in the full amount of twice the prescribed royalty payable on the two bustards ($65.00 per bird). The members of the Full Supreme Court took a similar view of the binding effect of that decision.

14. At the time when Cutmore was decided, s.54(2) of the Act provided:
"A person who commits an offence against this
section is liable to a penalty of not less than $50 and not more than $1,000, and in addition to a penalty of twice the royalty payable on each fauna in respect of which the offence is committed." In that case, Dunn J., (with whose reasons Lucas and Williams JJ.) agreed, "reluctantly" concluded (at p.66) that s.54(2), as then worded, conferred "upon the competent tribunal but one discretionary power, namely power to fix the amount of a fine between the amounts of $50.00 and $1,000.00; and that the fine so imposed is in all cases to be supplemented by an order for the payment of 'double royalty'." In so concluding, his Honour made clear (at pp.66-67) that he was applying the reasoning of the majority in Byrne v. McLeod (1934) 52 CLR 1 which he saw as applying to s.54(2) of the Act to preclude the application of "s.41(2)" (semble s.41(1)) of the Acts Interpretation Act 1954 (Q.) to require that the "double royalty" provision be construed as imposing a maximum and not a mandatory amount.

15. In Byrne v. McLeod, a majority of this Court (Gavan Duffy C.J., Rich, Evatt and McTiernan JJ. (Starke and Dixon JJ. dissenting)) had held that the words of the penalty provision in s.49 of the Sales Tax Assessment Act (No. 1) 1930 (Cth) had obliged the court of first instance to supplement the primary penalty imposed by an order for the payment of treble the amount of sales tax which had been avoided or attempted to be avoided. The words of that penalty provision were:
"Penalty: Not less than Fifty pounds nor more than
Five hundred pounds and in addition treble the amount of tax payment whereof he has avoided or attempted to avoid." The question before the Court was whether the provisions of s.3 of the Acts Interpretation Act 1904 (Cth) (see now Acts Interpretation Act 1901 (Cth), s.41) applied to make the additional liability to treble the amount of sales tax avoided or attempted to be avoided a maximum rather than a mandatory penalty. The majority held that the words of the penalty provision in s.49 were too clear to permit the application of s.3. Their Honours said (at p.5):

"The words mean to confer upon the competent tribunal one, but only one, discretionary power, namely, to fix the amount of the fine between the amounts of 50 and 500; but the penalty so imposed is, in all cases, to be supplemented by an order for the payment of treble the amount of tax avoided or attempted to be avoided."

It is apparent that this holding was a result of the form of the specification of penalty in s.49 of the Sales Tax Assessment Act. The Acts Interpretation Act provision contemplated the specification of one figure only (whether amount of fine or term of imprisonment), and declared that that figure should represent a maximum rather than a mandatory penalty. Where a minimum penalty was also specified there was no room for the operation of the Acts Interpretation Act provision. In that context the Court held that the Acts Interpretation Act 1904 could not be applied to qualify the provision, which applied indifferently to both minimum and maximum penalty, that treble the amount of tax avoided should be paid "in addition". In that regard, their Honours effectively upheld the submission of counsel for the appellant (ibid. at p.4) that s.3 of the Acts Interpretation Act 1904 "has no application to an Act which, as here, itself provides a maximum and a minimum penalty".

16. Section 41(1) of the Acts Interpretation Act 1954 (Q.) relevantly provides:
"Where in any Act or enactment a penalty is
prescribed in respect of any contravention thereof or failure to comply therewith, whether by way of fine or a term of imprisonment, the same shall be construed, unless otherwise expressly provided, to mean that such contravention or failure, whether by Act or omission, shall be punishable upon conviction by a fine or term of imprisonment, as the case may be, not exceeding that prescribed in such Act or enactment" (emphasis added). Subject to one important qualification, the operation of the provisions of that section may be regarded as corresponding with that of s.3 of the Acts Interpretation Act 1904 whose application had been held to be "excluded" in Byrne v. McLeod. The qualification is that s.3 of the Commonwealth Act had not, as s.41(1) of the Queensland Act had, required that the contrary legislative intent be "expressly provided" before its operation could be excluded. Moreover, it was arguable in Cutmore that the express reference in s.54(2) of the Act to a distinct additional "penalty" provided grounds for distinguishing the decision in Byrne v. McLeod where the reference was merely to "in addition treble the amount of tax ...". Dunn J., however, took the view that the specification of a minimum primary penalty in s.54(2) compelled the conclusion that the decision in Byrne v. McLeod was "exactly" applicable.

17. Subsequent to the decision in Cutmore, s.54(2) of the Act was amended by deleting all reference to a minimum penalty (see Fauna Conservation Act and Another Act Amendment Act 1976 (Q.), s.5). In its amended form, which was the form applicable at the time the offence was committed in the present case, s.54(2) provided:
"A person who commits an offence against this
section is liable to a penalty of $2,000, and in addition to a penalty of twice the royalty payable on each fauna in respect of which the offence is committed". The alteration of the penalty provision to conform to the style contemplated by s.41(1) effectively excluded the basis of the decision in Cutmore. It was no longer possible to discern in s.54(2) an "express" legislative intent that the specification of an additional "penalty" in s.54(2) should not be construed in the ordinary sense required by the Acts Interpretation Act (Q.) "where a penalty is prescribed", that is to say, as the specification of a maximum. In that regard, it should be noted that such a construction of s.54(2) would not mean that a person convicted under s.54 could avoid liability to pay any royalty at all, since s.70(5) of the Act expressly provides that a person so convicted is liable to pay the prescribed royalty "in addition to any penalty to which that person is liable upon conviction". In these circumstances, the deletion of any reference to a minimum penalty in s.54(2) effectively rendered inapplicable to the present case the reasoning of the majority of this Court in Byrne v. McLeod and the decision of the Full Court of the Supreme Court in Cutmore. Moreover, it resulted in a situation in which there remained no answer to the reasoning of the dissenting judgment of Dixon J. in Byrne v. McLeod which led his Honour to the conclusion that the additional penalty should be construed as a maximum, rather than a mandatory, amount. As his Honour said (at p.8):

"The principles of interpretation require that, in case of doubt, that meaning shall be adopted which will avoid harshness and will give the Courts authority to do what appears just in each particular case. In my opinion, it follows that the legislation ought to receive a construction which would leave it in the Court's discretion to fix the entire penalty between the prescribed maximum and minimum and would not expose the offender to a fixed penalty capable of amounting to a crushing imposition."

18. It should be mentioned that the provisions of s.54(2) of the Act were further amended in May 1984 which was after the commission of the offence in the present case (February 1984). That amendment (Fauna Conservation Act and Another Act Amendment Act 1984 (Q.), s.11), by the substitution of the words "not exceeding" for the word "of" before the words "twice the royalty", made it expressly clear that the reference in the sub-section to a penalty of double the amount of royalty payable should be construed as a reference to a maximum and not a mandatory amount. The argument in this Court proceeded on the common basis that that amendment was irrelevant for the purposes of the present case for the reason that it was made after the commission of the offence. The amendment was, however, operative at the time when the appellant was convicted and sentenced by the learned magistrate (August 1985) and it would seem arguable that it applied to the present case to make manifest that s.54(2) did not require the imposition of a mandatory penalty of double the amount of royalty payable (see the Code, s.11 but note the limited operation of the proviso to s.20(1) of the Acts Interpretation Act 1954 (Q.)). However, that question was not argued and it is unnecessary to pursue it since, as has been seen, the conversion from mandatory to maximum penalty had already been achieved by the earlier deletion of the specification of a minimum penalty.

19. It follows that the learned magistrate was in error in regarding himself as constrained to impose an additional penalty of $260 in the present case. That being so, the additional penalty in that amount plainly cannot be allowed to stand.

20. Nor, in my view, can the primary penalty of a fine of $100 since examination of the transcript of the reasons given by his Worship on sentencing suggests that he may have been influenced in proceeding to a conviction and in imposing a primary penalty of $100 by his erroneous view of the effect of s.54(2). His Worship had already indicated his sympathy for the appellant "as a person, torn between two cultures and two laws". In his remarks on sentencing, he expressed the view that the case was one in which it was appropriate for the "fine" to be "kept down to what I consider the minimum, bearing in mind the ... circumstances of the defendant". In the context of those remarks, it seems to me that his Worship's view that the imposition of an additional penalty of double the royalty was mandatory may have played some part in his decision to proceed to a conviction rather than to discharge the appellant pursuant to s.657A of the Code.

21. In these circumstances, the question arises whether the appropriate course for this Court to follow is to remit the matter to the learned magistrate (or the Full Court of the Supreme Court) to consider anew the question of what orders should be made. That course was not, however, suggested by either side in argument and, after some hesitation, I have come to the conclusion that the matter should be brought to finality in this Court. I am influenced in that conclusion by the consideration that the case is, to my mind, one in which an order under s.657A should clearly be made.

22. The evidence indicates that the appellant is a man of good character. As has been said, he is an elder of his people. No previous convictions are suggested against him. He is a married man with dependants and very limited resources. According to the express findings of the learned magistrate, the appellant was quite unaware that he was acting in breach of any law when, in accordance with his traditional custom, he shot the adult bustard for food and took the chick, which had been separated from its parents, to raise as a pet with the intention of subsequently releasing it in the bush. In these circumstances (good character, no moral fault, no awareness of unlawfulness, extreme extenuating circumstances, straitened personal means and obligations to dependants), it seems to me that the present case is precisely the type of case to which the provisions of s.657A of the Code should be applied. In my view, the appropriate course to be followed is that the appellant be discharged absolutely pursuant to the provisions of that section without any conviction being recorded.

23. I turn to consider the orders for costs, totalling $559.50, which the learned magistrate made against the appellant. That amount is disturbingly high for a prosecution of this kind which was disposed of on a hearing of less than a day in a local magistrates court. Its components were court costs $30.50, professional costs of $40.00 and "other costs of the prosecution at $489". The explanation of the "other costs of the prosecution" is that that amount represents the cost of prosecuting counsel's airfare between Brisbane and Mt. Isa. In the Full Court of the Supreme Court, the view was taken that the question of costs was in the discretion of the learned magistrate and that there was no ground for interfering with the exercise of his discretion in that regard. I do not think a similar view should be taken in this Court in circumstances where the primary orders made by the learned magistrate are being set aside. It was, in my view, wrong to order the appellant, in the circumstances of the present case, to pay $489 to cover the airfare of counsel. It was, of course, entirely a matter for the Crown whether counsel should be brought from Brisbane to prosecute the appellant in the Magistrates Court at Mt. Isa. However, in all the circumstances of this case, the burden of the additional costs incurred by the Crown in following that course should not be cast upon the appellant.

24. There remains for consideration the question of other costs. The appellant should continue to bear the burden of the court costs of $30.50 in respect of the proceedings in the Magistrates Court at Mt. Isa. The appropriate order under s.161 of the Justices Act 1886 (Q.) is that the amount thereof shall be recoverable, in the event of default of payment, by execution against the goods and chattels of the appellant. In view of the fact that the appellant has failed in his defence under s.22 of the Code, but has succeeded in relation to the question involving the construction of s.54(2) and in relation to penalty, the sensible and fair outcome appears to me to be that there should be no order as to party and party costs in the courts below or in this Court.

25. The appeal should be allowed. The decision of the Full Court of the Supreme Court of Queensland discharging the order to review should be set aside and in lieu thereof the order to review should be made absolute and it should be ordered that the appellant's conviction should be quashed and the appellant be discharged pursuant to the provisions of s.657A of the Code. The order that the appellant pay court costs of $30.50 should stand and the appellant should be allowed thirty (30) days to pay them. Otherwise, there should be no order as to the costs of either party in any court.

DAWSON J. The appellant was convicted in the Magistrates Court at Mt. Isa of keeping prescribed protected fauna, namely, two Australian bustards or plain turkeys, contrary to s.54(1)(a) of the Fauna Conservation Act 1974 (Q.) ("the Act") which provides:
"A person shall not take, keep or attempt to take
or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act."

2. There is no dispute that the appellant, a full blood Aboriginal, was found in possession of a partly-plucked turkey carcass and a live turkey chick. The carcass was that of a bird which he had shot in the bush for food and the chick, which had been caught by one of his children, was being kept as a pet until it had grown sufficiently to be released in the bush. The two birds were fauna within the meaning of the relevant provision and were, under s.7 of the Act, the property of the Crown. It is common ground that the appellant possessed no authority under the Act.

3. Before the magistrate was a body of evidence given by the appellant himself and by an anthropologist called on his behalf to the effect that at the relevant time the appellant believed, in accordance with Aboriginal custom and his own practice of a lifetime, that he was entitled to take the turkeys as "bush tucker" and that he was committing no offence in so doing. He had been given permission by the manager of the property on which the turkeys were taken to go hunting on that property.

4. The appellant raised the defence of claim of right under s.22 of the Criminal Code 1899 (Q.) ("the Code"). That section provides:
"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.

But a person is not criminally responsible, as for an offence relating to property, for an act
done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."

Section 22 should be considered with s.24. Section 24 provides:

"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule may be excluded by

the express or implied provisions of the law relating to the subject."

Both s.22 and s.24 are contained in a chapter which is expressed to apply to all persons charged with any offence against the statute law of Queensland: s.36.

5. The appellant's defence of claim of right was rejected by the magistrate, although the latter found that the appellant honestly believed that he was doing nothing wrong. The magistrate's rejection of that defence was unanimously upheld by the Full Court of the Supreme Court of Queensland and forms the sole ground of appeal against conviction before this Court.

6. I have set out s.22 and s.24 because they both concern the law dealing with the effect of mistake upon criminal responsibility. In Thomas v. The King (1937) 59 CLR 279, at pp 305-306, Dixon J. expressed the view that the two sections state the common law "with complete accuracy". However, it has been suggested that at common law an honest claim of right may constitute a defence in some cases which do not relate to property. See Reg. v. Tinkler (1859) 1 F &F 513 (175 ER 832); Anderson v. Nystrom (1941) St R Qd 56, at pp 69-70; Olsen v. The Grain Sorghum Marketing Board; Ex parte Olsen (1962) QdR 580, at pp 592-593. It may be doubted whether the defence in such cases, although based upon mistaken belief going to intent, should be classified as a claim of right. Be that as it may, claim of right as a defence at common law has its origin and at least its primary application in cases relating to property and in that application has a settled meaning.

7. Both s.22 and s.24 of the Code are concerned with the effect of mistaken belief, but s.24 deals with mistake of fact only whereas the defence of claim of right in s.22 embraces also mistake of law although only in the limited manner to which I shall turn shortly. It is, of course, always necessary for the prosecution to prove the intent which forms an ingredient of a particular crime and any honestly held belief, whether reasonable or not, which is inconsistent with the existence of that intent will afford a defence. But in addition, there is the wider principle that the existence of any state of mind, however limited, which is an element of a crime, may be negated by an honest and reasonable belief in the existence of circumstances which, if true, would make the impugned act innocent: Reg. v. Tolson (1889) 23 QBD 168. The generality of that proposition may best be seen at common law in its application to statutory offences of strict liability which, although containing no requirement of intent, or mens rea as it is ordinarily understood, are nevertheless presumed to contain the requirement of a lesser mental element which may be expressed negatively as the absence of an honest and reasonable belief in a state of facts which if true would take the case outside the ambit of the offence. The existence of a defence based upon honest and reasonable mistake in the context of statutory offences has recently been discussed in He Kaw Teh v. The Queen (1985) 157 CLR 523 and need not detain me here. The point which I wish to emphasize is that the mistaken belief to which s.24 refers is a mistake of fact and not a mistake of law, although a mistake which concerns the existence of a compound event consisting of mixed fact and law will generally be regarded as a mistake of fact. See Thomas v. The King, at p 306.

8. It is of significance that the appellant in this case did not seek to avail himself of any defence under s.24. Upon the evidence he could not do so for he was not mistaken about the nature of his acts nor about the nature of the birds which he kept. His mistake concerned the law and that no doubt affords the explanation why he chose instead to turn to s.22 and to raise a claim of right. For, as I have said, in a limited way a claim of right may be based upon a mistake of law. Stephen in his History of the Criminal Law of England, (1883), vol.II, at pp.114-115 put it this way:

"As regards knowledge of law the rule is that

ignorance of the law is no excuse for breaking it, a doctrine which is sometimes stated under the form of a maxim that every one is conclusively presumed to know the law - a statement which to my mind resembles a forged release to a forged bond. The only qualification upon this doctrine with which I am acquainted is that ignorance of the law may in some cases be relevant as negativing the existence of some specific criminal intention. Thus, for instance, a claim of right is inconsistent with an intent to steal, and in order to show that property was taken under a claim of right it may be shown that the taker was ignorant of the law."

9. It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law. See Cooper v. Phibbs (1867) LR 2 HL 149, at p 170 per Lord Westbury. As Hanger J. pointed out in Olsen at p 589: "Section 22, after stating that ignorance of the law is no excuse, does not proceed to say that ignorance of the law is an excuse in the case of an offence relating to property for an act done with respect to property. It refers to an act done in the exercise of an honest claim of right and without intention to defraud."

10. In Reg. v. Pollard (1962) QWN 13, a claim of right was raised in answer to a charge of unlawful use of a motor vehicle. At p 29 Gibbs J. observed that it was not to the point that the accused had no right to take the vehicle - a claim of right need only be honest and need not be reasonable - and observed that if he "honestly believed that he was entitled to take it, or if the jury had a reasonable doubt whether he had such a belief, he should have been acquitted, however wrong his belief may have been, and however tenuous and unconvincing the grounds for it may seem to a judge". His Honour was not, however, referring to a belief on the part of the accused in an entitlement to behave as he did, that is to say, in the mere absence of a prohibition, but to a belief on his part that he was exercising a claim of right, that is to say, a legal entitlement to the vehicle arising under civil law which would negate the criminal intent involved in the offence with which he was charged, namely, unlawfully using a motor vehicle without the consent of the owner and without the consent of any person in unlawful possession thereof. See Olsen at pp 584-585, 590; Reg. v. Walsh (1984) 2 QdR 407, at pp 408-409.

" On the other hand, if he honestly believed that
he was entitled to take the vehicle without obtaining the owner's consent, either because he thought that the owner would not object, or because he thought that the owner would have given his consent if he had been asked for it, or for any other reason, the taking would have been in the exercise of an honest claim of right." (emphasis added).

25. His Honour placed no limit on the range of circumstances that could give rise to an honest claim of right, at any rate in the case before him.

26. The second paragraph of s.22 stands by way of qualification to the preceding paragraph. Ignorance of the law affords no excuse for an act or omission unless knowledge of the law is expressly declared to be an element of the offence concerned. And so it would be no answer to the charge against the appellant that he was unaware of the provisions of the Fauna Conservation Act or that he misunderstood its provisions. Thus in Olsen a claim by the appellants that they could buy sorghum from any person because they honestly but wrongly believed that the provisions of certain marketing Acts did not apply to their transaction was seen by Mansfield C.J. to amount to a claim "that because they were ignorant of the law they were not criminally responsible" (at p.585).

27. Equally a belief on the part of a person charged with an offence that his act or omission was morally justified does not of itself attract the operation of the second paragraph of s.22. The paragraph is more limited, not only by reason of its reference to property but also because of its requirement of a claim of right.

28. To ask whether s.54 of the Fauna Conservation Act creates an offence of strict liability or whether it proscribes the very conduct in respect of which a claim of right is made is not to determine the operation of s.22 of the Code. Section 36 of the Code casts the net of s.22 so widely that it applies to any offence against the statute law of Queensland. Section 22 is not confined to offences which require a particular mental element nor does it exclude offences proscribing conduct that would otherwise be lawful.

29. The offence of which the appellant was convicted was that of keeping prescribed protected fauna. The question therefore is whether he honestly believed that he had the right to keep the plain turkeys. Here "keep" must mean retain in his possession, whether as a dead bird to be eaten (as in the case of one turkey) or as a live bird to be kept as a pet (as in the case of the other turkey).

30. It was argued on behalf of the respondent that the claim asserted by the appellant related to a right which had no existence in law. Again, of itself that is no answer to a claim to the benefit of the second paragraph of s.22. In Bernhard, to which reference was made earlier, the trial judge had directed the jury in terms that included the following:
" You cannot have a claim of right where the
circumstances are such as to exclude the possibility of a legal claim." But on appeal the conviction was quashed. Charles J., delivering the judgment of the Court said at p.270:

" We are, however, bound by a long series of decisions ... to hold that this view is incorrect, and that a person has a claim of right ... if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact."

This view was endorsed by Gibbs J. in Mitchell v. Norman; Ex parte Norman (1965) QdR 587, at pp 594-595 and by Johnston J. in The Queen v. Langham (1984) 36 SASR 48.

31. In O'Regan, Essays on the Australian Criminal Code (1979) Ch.I the comment is made at pp.10-11:
" There appear to be no cases decided under
codified or common law in which a claim of immunity from statutory restraint has succeeded under the guise of claim of right."

32. The argument against such a claim succeeding is that maintained by Hanger J. in Olsen. Such a claim, it is said, is not a claim to a right but a claim to a "liberty" or "immunity" from the restraint imposed by the legislation in question. If a claim, when analyzed, amounts to no more than an assertion that the claimant is not bound by legislation, clearly it is not a claim within s.22 of the Code. In so far as it is a claim to be exempt from the operation of the statute, it runs counter to the rule of law in one of the senses attributed to that concept by Professor Dicey in Introduction to the Study of the Law of the Constitution, 10th ed. (1959), p.193 -
" ... every man, whatever be his rank or condition,
is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals."

33. Section 22 contemplates something different to a claim to immunity or to some liberty or licence to operate without the restraint of a particular law. But equally the section does not require an assertion of ownership of the property to which the charge relates. The defendant in Pollard did not assert a right of ownership in the vehicle he drove nor did he assert any proprietary interest therein. He claimed to be entitled to drive the vehicle, to make use of it. In the present case the claim is one to make use of the plain turkeys, though in a rather special way that includes consuming one and keeping one as a pet. Is that a claim of right within the meaning of s.22 of the Code?

34. Despite the novelty of the present claim, I am satisfied that it does fall within s.22. In his evidence Mr Walden said that he honestly believed he had a right to kill and take the turkeys. It is true that the statement was in response to a very leading question. But there was no cross-examination of Mr Walden and his answer was consistent with his evidence generally. There was an honest claim that he was entitled to do what he did; it was a claim with respect to property; and it was a claim made in answer to a charge relating to property. It was not a claim to be able to act without the restraint of the Fauna Conservation Act. When analyzed, it was an honest claim that by the customs of his people, recognized by law, he was entitled to eat the adult bird and keep the chick as a pet. Whether the claim be well founded is not the point.

35. The second paragraph of s.22 exempts a person from criminal responsibility, in the circumstances there mentioned, "for an act ... done by him". The act in question is the keeping of the turkeys, a notion that implies having them in one's custody or possession. It is easier perhaps to apply s.22 to the taking of turkeys for that involves a discernible physical act. Nevertheless the evidence as found by the magistrate established that Mr. Walden believed he was entitled to keep the turkeys in the way that has been described.

36. In my view the appeal should be allowed, the order of the Full Court set aside and in lieu thereof the order nisi to review be made absolute. That is not the view of the majority. In those circumstances I agree with the course proposed by Brennan, Deane and Dawson JJ. that the appellant be discharged absolutely pursuant to s.657A of the Code, that, within thirty days, he pay the court costs of $30.50 in connection with the proceedings before the Stipendiary Magistrate and that there be no order as to the costs of the appeal to the Full Court or to this Court.

GAUDRON J. Mr Walden appeals by special leave from an order of the Full Court of the Supreme Court of Queensland, discharging an order nisi for review of his conviction and orders imposed as to penalty on a charge under s.54(1)(a) of the Fauna Conservation Act 1974-1979 (Q.) ("the Fauna Conservation Act") of keeping two Australian bustards (Eupoditis australis) whilst not being the holder of a licence, permit, certificate or other authority granted under the Act.

2. Mr Walden, an Aborigine, is an elder of the Gungalida tribe, which is based at Doomadgee near Burketown in North Queensland. He presently lives in Mount Isa and works as a contract musterer. From time to time he returns to Doomadgee. It has been Mr Walden's practice, even when living in Mount Isa, when the occasion presents itself, to hunt for traditional food in accordance with the customs of his tribe. On Sunday, 26 February 1984, he was hunting near the Lilly Fishing Hole, some 20 to 30 miles south-east of Gunpowder Creek. He there killed one adult Australian bustard or plain turkey, and took possession of its carcass; a little later he also took possession of a bustard or turkey chick. It was his intention to eat the adult bird, and to keep the chick as a pet until it grew to a size when it could be released into the bush. In furtherance of these intentions he had the birds in his possession. His actions accorded with the customs of the Gungalida tribe.

3. On the hearing of the charge of keeping the dead adult bird and the live chick, Mr Walden testified that he honestly believed that he had a right to do what he did. The Stipendiary Magistrate, before whom the charge was heard, found that Mr Walden honestly believed that he was doing nothing wrong, but rejected a defence of claim of right made on behalf of Mr Walden.

4. Section 22 of the Criminal Code (Q.) provides a defence of claim of right in the following terms:
"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.

5. But a person is not criminally responsible, as
for an offence relating to property, for an Act
done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."

6. By s.36 of the Criminal Code, the defence is made
applicable to "all persons charged with any offence against the Statute Law of Queensland." In Pearce v. Paskov (1968) WAR 66, Virtue J., (speaking of the identical provision in the Criminal Code of Western Australia) considered that s.22 should be construed as applying exclusively to offences of the character of those defined in Part VI of the Criminal Code, which is headed "Offences Relating to Property and Contracts". He identified the character of such offences (at p.72) as involving "deprivation of or interference with the proprietary or possessory rights of the true owner or person in possession, or acts involving destruction or damage to the property of others". A contrary view was expressed in Reg. v. Hobart Magalu (1974) PNGLR 188, where Frost A.C.J. held that the defence was available in answer to the offences of forging and uttering as they were offences relating to property within the meaning of s.1 of the Code.

7. Section 22 is not without difficulty: it is not clear what function is served by the adverbial phrase "as for an offence relating to property". Nevertheless, the section clearly absolves from criminal activity any act or omission with respect to property done in the exercise of an honest claim of right and without intention to defraud. If the keeping of the two turkeys is an act with respect to property, then s.22 of the Criminal Code enables a person charged with an offence constituted by the act of keeping the birds to raise a defence of claim of right.

8. Property is defined in s.1 of the Criminal Code to include "every thing, animate or inanimate, capable of being the subject of ownership". At common law, wild animals (both dead and alive) are capable of ownership, so long as (in the case of living animals) they remain captive (see Halsbury's Laws of England (4th ed.) vol.2 pars.205-209). Section 7(1) of the Fauna Conservation Act provides that:
"All fauna, save fauna taken or kept during an open
season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority." The statutory acknowledgment that ownership of fauna is vested in the Crown, except when taken or kept during an open season, necessarily also involves the acknowledgment that fauna is capable of being the subject of ownership. Accordingly, the keeping of the two birds by Mr Walden was an act with respect to property within the meaning of the Criminal Code, and was thus an act to which no criminal responsibility attaches if the conditions of s.22 of the Criminal Code are satisfied.

9. Section 22 of the Criminal Code is in two parts: the first part gives expression to the principle encompassed in the maxim "ignorantia juris non excusat"; the second part provides, not by way of exception, but by way of qualification to this principle, the defence of claim of right. Such a defence is not constituted by mere ignorance of the criminal law, and therefore must have some foundation or basis independent of a mere belief in a liberty to engage in that which is not unlawful. Equally, however, ignorance of the criminal law does not preclude the assertion of a supposed right, notwithstanding that such assertion involves a belief, founded in ignorance, that conduct proscribed by the criminal law is lawful. That is also the position under the common law, as is illustrated by R. v. Rutter (1908), 25 TLR 73; 1 CrAppR 174, where the conviction of a tenant (who had cut down trees claiming a right to do so because he had planted them) was reversed on the basis that the jury had stated that the defendant acted in ignorance.

10. Where, as here, the offence proscribes the conduct in relation to which the claim of right is raised, it is tempting, but not accurate, to view the claim as one which sounds simply in ignorance of the law. But the question is more complex; it is whether there can be a claim of right if the right asserted is to engage in conduct which is expressly proscribed by the offence charged. A similar, but not identical, question was addressed in R. v. Bernhard (1938) 2 KB 264, and in Gott v. Measures (1948) 1 KB 234. In Bernhard, Charles J., delivering the judgment of the Court of Appeal, stated at p 270 (in a passage cited with approval by Gibbs J. in Reg. v. Pollard (1962) QLR 27, at p 29) that:
"... a person has a claim of right ... if he is
honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact."

11. In Gott v. Measures, Lord Goddard C.J. (with whom Humphreys and Croom-Johnson JJ. expressed their agreement) stated (at p 239) that there could not be "a bona fide claim of right if the right is one which the law does not recognize ...". It seems to me that the statement by Lord Goddard is expressed too widely. The question is not whether the right is recognized by the law but whether it is claimed by reason of the supposed operation of law.

12. Interesting though it be in terms of metaphysics, the answer to the question whether a claim of right may be raised in answer to an offence which expressly proscribes the conduct in respect of which the right is asserted, is, in the present case, to be discerned from Ch.V of the Criminal Code, the provisions of which apply by virtue of s.36 to all persons charged with offences under the Statute Law of Queensland. Chapter V is concerned with criminal responsibility. It deals, inter alia, with a number of matters which are commonly, if not always entirely accurately, described as defences. Section 24 is concerned with mistake of fact, and provides that where an act is done or omitted to be done under an honest and reasonable, but mistaken, belief in the existence of any state of things, then there is no greater criminal responsibility than there would be if the facts were as believed. If s.24 stopped there, then by virtue of s.36 (to which reference has already been made) mistake of fact could be raised in answer to any offence under the Statute Law of Queensland. However, s.24 proceeds to state that the operation of the rule as to mistake of fact "may be excluded by the express or implied provisions of the law relating to the subject." There is no similar provision whereby the operation of the rule relating to bona fide claim of right under s.22 may be excluded. It is to apply to all offences. It is in the nature of some offences not only to render unlawful acts or omissions which would otherwise be lawful, but also to render unlawful that which a person might otherwise do not merely by liberty, but as of right. Section 36 applies s.22 to all offences, including offences of this latter nature. Accordingly, s.22 is, properly construed, available as a defence notwithstanding that the conduct the subject of the claim is expressly proscribed by the offence charged.

13. In the judgments of the Full Court, the subject of this appeal, it was suggested by Connolly J. (with whom de Jersey J. agreed) that the right claimed should either resemble a right of property in the birds, or be a right peculiar to Mr Walden, and by Thomas J. that the right claimed should be claimed by reference to special rights given by the Crown to Mr Walden or to Aboriginal people as a class. Kneipp J. (with whom Kelly and Carter JJ. agreed) adopted a similar view in R. v. Walsh (1984) 2 QdR 407. There, in relation to s.22 of the Criminal Code, his Honour said (at p 408) that:

"... the provision refers to a right relating to the property to which the charge relates: a right which if it existed would be, to adopt language used by Mansfield C.J. in Olsen and Another v. The Grain Sorghum Marketing Board, ex parte Olsen and another (1962) Qd R 580, 585, a right in or to that property which would be peculiar to the person asserting the right."

What s.22 requires is that the right asserted be a right to do or to refrain from doing an act in relation to property. There is nothing in the words of s.22 of the Criminal Code to suggest that a claim of right should be limited, either in the manner suggested in the judgments under appeal, or in the manner suggested in Walsh. Nor is any such limitation suggested in the cases concerning the common law defence of claim of right. Indeed, the decision of R. v. Boden (1844) 1 Car &K 395; 174 ER 863, is contrary to all the above suggested limitations. In that case Parke B. allowed a claim of right in answer to a charge of assault with intent to rob, the right claimed being a right to recover money owed to a friend of the accused by the father of the person from whom it was demanded. (See also R. v. Hemmings (1864) 4 F &F 50; 176 ER 462.)

14. In R. v. Pollard (1962) QWN 13, Gibbs J., with whom the other members of the Full Court of the Supreme Court of Queensland agreed, stated (at p 29) that an "accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing." Some attempt was made in the present case to confine that statement by reference to the particular facts of Pollard. I see no reason why it should be so confined, provided that the right claimed has a foundation in some event, transaction, status or relationship, and is not founded merely on a claim to immunity (whether by reason of ignorance or mistake) from the operation of the criminal law.

15. In the present case, the foundation of Mr Walden's claim of right is based on his membership of an Aboriginal community and the customs of that community. That seems to me to lay a sufficient foundation for a claim of right, provided that the claim is made by reference to some supposed operation of the law, for within a legal context, rights do not exist in the abstract. A right must mean a right in law, and not merely one which owes its existence to a moral order, religious code or other non-legal regimen. A claim of right predicated on the customs of the Aboriginal community does not, without more, constitute a claim of right within the contemplation of s.22 of the Code. However, should such a claim be asserted on the basis that the customs of the Aboriginal community in question are recognized by law, the claim will be brought within the purview of the section. It is not to the point to inquire whether or not the right claimed subsists at law: the nexus that is required to bring the right claimed within the scope of the section is its supposed recognition by the law. Although the evidence given by Mr Walden was somewhat cursory, it is clear that the right he claimed was claimed not merely by virtue of the customs of his community. He gave evidence that before his hunting trip, he sought and obtained permission to hunt from the manager of Carlton Hill station, within the boundaries of which was situated the land where the birds were taken. It may be that Mr Walden thought that his claim derived immediately from the permission granted; alternatively, he may have thought that such permission was a condition precedent to the exercise of a right recognized by law. On either view, the right he claimed was claimed by virtue of the supposed operation of law, and not merely by virtue of the custom of his community.

16. The claim of right made by Mr Walden was one which fell within s.22 of the Criminal Code, and which by s.36 of that Code he was entitled to raise in answer to the offence charged. The evidence, which was not challenged in cross-examination, was that he honestly believed that he had a right to do what he did. Accordingly, in my view the appeal should be allowed with costs of this appeal and of the proceedings before the Full Court. The order of the Full Court of the Supreme Court of Queensland should be set aside, and in lieu thereof it should be ordered that the order nisi for review be made absolute, the conviction set aside and orders as to fine, royalty and costs discharged. This is not the view of the majority. In these circumstances it is appropriate that I state my agreement with the course proposed by Brennan, Deane and Dawson JJ.

Orders

Appeal allowed in part.

Judgment of the Full Court of the Supreme Court of Queensland delivered on 2 May 1986 set aside and in lieu thereof order as follows:

"Order to review made absolute.

Quash the conviction and order of the Magistrates Court at Mount Isa made on 15 August 1985 and in lieu thereof order pursuant to s.657A of the Criminal Code that the appellant be discharged absolutely and order that the appellant pay court costs of $30.50 within 30 days and that that amount be recoverable by execution against his goods and chattels."

No order as to costs in this Court or in the Full Court of the Supreme Court of Queensland.