Wanganeen v Dietman; Shaw v Dietman
[2021] SASCFC 25
•14 May 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WANGANEEN & ANOR v DIETMAN; SHAW v DIETMAN
[2021] SASCFC 25
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Kelly, the Honourable Justice Blue, the Honourable Justice Stanley and the Honourable Justice Doyle)
14 May 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - NATIVE TITLE - PROOF AND EVIDENCE
PRIMARY INDUSTRY - FISH - OFFENCES - PROCEDURE AND EVIDENCE ON PROSECUTION - EVIDENCE
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING PROHIBITED TYPE OF FISH
PRIMARY INDUSTRY - FISH - ABORIGINAL CUSTOMARY RIGHTS
Appeals against convictions by a Magistrate of three counts of being in unauthorised possession or control of a commercial quantity of fish of a priority species (green lipped abalone) (counts 1, 2 and 4) and one count of being in possession or control of a prescribed class of aquatic resource (undersize green lipped abalone) (count 3).
The three appellants appeal against their convictions on counts 1, 2 and 3 on the grounds that the Magistrate:
1.made erroneous findings material to adverse credit findings which led to the conclusion that the abalone the subject of counts 1 and 2 were not taken for the purpose of satisfying personal, domestic or non-commercial communal needs within the meaning of section 211 of the Native Title Act 1993 (Cth);
2.misdirected himself in law in ignoring the fact that the abalone the subject of counts 1 and 2 were intended to be eaten at a communal 21st birthday party and, once the evidentiary basis on which the Magistrate found the abalone were not intended for the 21st birthday party is overturned, the logic of the evidence demands acceptance that they were in part intended for the party and thus were taken within the Native Title defence;
3.erred in finding that, while the indicia existed of native title, findings as to credit of the first and second appellants could undermine the findings made as to performance of the impugned acts in protected native title style the subject of counts 1 and 2;
4.erred in finding that the first and second appellants were involved in a joint enterprise with the third appellant to take a large quantity of abalone because that finding was unreasonable and incapable of being supported having regard to the evidence.
The third appellant appeals against his conviction on count 3 on the grounds that the Magistrate:
1.erred in finding that the abalone were in his possession for the purpose of sale because it was unreasonable and incapable of being supported having regard to the evidence;
2.erred in his finding in relation to the operation of the Native Title Act because his possession was entirely consistent with the satisfaction of a personal or domestic need as set out in section 211 of the Native Title Act 1993 (Cth).
The second appellant appeals against his conviction on count 4 on the grounds that the Magistrate:
1.having found that he had met the evidentiary burden for the native title defence, erred in applying the presumption contained in section 72(3)(a) of the Fisheries Management Act 2007 (SA);
2.having determined that there was evidence capable of establishing a reasonable possibility that the abalone were in his possession for personal or domestic use, erred in law in being satisfied that he had possession for the purpose of sale.
The respondent makes alternative contentions that:
1.if the Magistrate made errors in finding that the abalone were taken for commercial purposes, the appellants nevertheless failed to discharge the evidentiary onus of proof in respect of all counts that they were taken for the purpose of satisfying their personal, domestic or non-commercial communal needs and in exercise or enjoyment of their native title fishing rights and interests within the meaning of section 211 of the Native Title Act 1993 (Cth);
2.conceding that the presumption in section 72(3)(a) of the Fisheries Management Act 2007 (SA) does not apply to the offence the subject of count 4 being contravention of section 74, nevertheless the second appellant bore the persuasive or legal onus under general principles of proving inconsistency on the facts between section 211 of the Native Title Act 1993 (Cth) and section 74 of the Fisheries Management Act 2007 (SA);
3.on a review of the whole of the evidence, the Court can conclude that a finding of guilt of count 4 was inevitable, that is that the operation of section 211 of the Native Title Act1993 (Cth) was excluded beyond reasonable doubt.
Held by the Court:
1.The Magistrate erred in concluding that the prosecution had proved beyond reasonable doubt a joint enterprise between the first and second appellants on the one hand and the third appellant on the other hand to catch large quantities of abalone (at [101]-[102]).
2.The Magistrate’s reasons for rejecting the evidence of the first and second appellants as to their purpose and finding beyond reasonable doubt that they took the abalone the subject of counts 1 and 2 for commercial purposes are vitiated by a combination of errors of fact or reasoning (at [132]-[133]).
3.Although the Magistrate’s finding is vitiated by those errors, this is not a case in which acquittals can be entered on counts 1 and 2 because it was open to the trier of fact to find, on the evidence adduced at trial, that it was proved beyond reasonable doubt that the first and second appellants’ purpose of the taking was commercial (at [141]).
4.This is not a case in which the convictions on counts 1 and 2 can be affirmed notwithstanding the Magistrate’s errors because it was open to the trier of fact to find, on the evidence adduced at trial, that the first and second appellants took the abalone in the exercise of their native title rights and interests for the purpose of satisfying personal, domestic or non-commercial communal needs (at [163]-[164]).
5.The Magistrate’s affirmative finding beyond reasonable doubt that the abalone the subject of count 3 were in his possession for the purpose of sale was unreasonable and incapable of being supported having regard to the evidence (at [172]).
6.Nevertheless, no evidence was adduced from the third appellant or any other witness at trial that was capable of discharging the evidentiary onus on him in respect of the conditions or elements for the operation of section 211 of the Native Title Act 1993 (Cth) on section 72 of the Fisheries Management Act 2007 (SA) and the conviction on count 3 must therefore be affirmed (at [175]-[177]).
7.In respect of count 4, the Magistrate erred in applying the presumption contained in section 72(3)(a) of the Fisheries Management Act 2007 (SA) to an offence of contravening section 74 (at [188]).
8.The presumption in section 72(3)(a) of the Fisheries Management Act 2007 (SA) reverses the onus of proof in relation to the element of the pseudo-aggravated form of the offence that possession be for the purposes of sale; it does not, on its proper construction, create a presumption in respect of an extraneous provision such as section 211 of the Native Title Act 1993 (Cth) (at [190]-[193]).
9.This is not a case in which the conviction on count 4 can be affirmed notwithstanding the Magistrate’s errors because it was open to the trier of fact to find, on the evidence adduced at trial, that the second appellant took the abalone in the exercise of their native title rights and interests for the purpose of satisfying personal, domestic or non-commercial communal needs (at [206], [209]).
10.Although the Magistrate’s finding is vitiated, this is not a case in which an acquittal can be entered on count 4 because it was open to the trier of fact to find, on the evidence adduced at trial, that it was proved beyond reasonable doubt that the second appellants’ purpose of the taking was not in the exercise of his native title rights and interests for the purpose of satisfying personal, domestic or non-commercial communal needs (at [206], [209]).
11.Observations concerning the issue as to the incidence of the persuasive burden of proof in relation to the operation of section 211 of the Native Title Act 1993 (Cth) on sections 72 and 74 of the Fisheries Management Act 2007 (SA) (at [211]-[245]).
12.Appeals allowed in part. Convictions on counts 1, 2 and 4 set aside. Acquittals entered in respect of counts 1 and 2 against the third appellant and in respect of count 3 against the first and second appellants. Charges the subject of counts 1, 2 and 4 against the first and second appellants remitted to the Magistrates Court for fresh trial. Appeal by the third appellant against conviction on count 3 dismissed (at [246]-[249]).
Fisheries Management Act 2007 (SA) ss 72, 74; Native Title Act 1993 (Cth) s 211, referred to.
Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Clubb v Edwards (2019) 267 CLR 171; Derschaw v Sutton (1996) 17 WAR 419; Dillon v Davies (1998) 8 Tas R 229; Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; Dowling v Bowie (1952) 86 CLR 136; Dudley v Department of Primary Industries and Regions South Australia (2018) 231 LGERA 13; Horne v Tweed River Transport Pty Limited (1967) 61 QJPR 114; Mabo v Queensland (No 2) (1992) 175 CLR 1; Madsen v Western Interstate Pty Ltd; Ex parte Western Interstate Pty Ltd [1963] Qd R 434; Mason v Tritton (1994) 34 NSWLR 572; Momcilovic v The Queen (2011) 245 CLR 1; Muscat v Douglas (2006) 32 WAR 49; R v Edwards [1975] QB 27; R v McNaughton [1843] 8 ER 718; Samuels v Stokes (1973) 130 CLR 490; Stevenson v Yasso [2006] 2 Qd R 150; Woolmington v Director of Public Prosecutions [1935] AC 462, considered.
WANGANEEN & ANOR v DIETMAN; SHAW v DIETMAN
[2021] SASCFC 25
Full Court: Kourakis CJ, Kelly, Blue, Stanley and Doyle JJ
THE COURT: The appellants, Simon Wanganeen, Henry Humes and John Shaw, were convicted after a trial by a Magistrate of two counts of being in unauthorised possession or control of a commercial quantity of fish of a priority species (green lipped abalone) (counts 1 and 2)[1] and one count of being in joint possession or control of a prescribed class of aquatic resource (undersize green lipped abalone) (count 3).[2] Humes was also convicted of an additional count of being in unauthorised possession or control of a commercial quantity of fish of a priority species (green lipped abalone) (count 4).[3]
[1] Fisheries Management Act 2007 section 74(1)(b).
[2] Fisheries Management Act 2007 section 72(2)(c).
[3] Fisheries Management Act 2007 section 74(1)(b).
The appellants Wanganeen and Humes appeal against their convictions on counts 1, 2 and 3 on the following grounds:[4]
1.The Magistrate made erroneous findings of fact material to adverse credit findings in relation to their evidence which led to the conclusion that the abalone were not taken for the purpose of satisfying personal, domestic or non-commercial communal needs.[5]
2.The Magistrate misdirected himself in law:
(a) the Magistrate’s finding that the number of abalone taken exceeded the usual Narungga practice for sharing with family ignored the fact that the abalone were intended to be eaten at a communal 21st birthday party;
(b) once the evidentiary basis on which the Magistrate dismissed the claim to be providing abalone for the 21st birthday party is overturned, the evidence was uncontroverted that abalone is regularly taken from the Narungga traditional home on Yorke Peninsula to Narungga people in Adelaide and the logic of the evidence demands acceptance that the abalone were in part intended for the party and thus were taken within the Native Title Act 1993 (Cth) (the Native Title Act) defence.[6]
3.The Magistrate erred in finding that, while the indicia existed in this case of native title for the purposes of the Native Title Act, findings as to their credit could undermine the findings made as to performance of the impugned acts in protected native title style.[7]
4.As to count 3, the Magistrate’s finding that they were involved in a joint enterprise with Shaw to take a large quantity of abalone was unreasonable and incapable of being supported having regard to the evidence.[8]
[4] The appellants abandoned ground 4 at the hearing of the appeal.
[5] Ground 1. This ground is formulated here as argued on the hearing of the appeal rather than the wording contained in the notice of appeal.
[6] Ground 2. This ground is formulated here as argued on the hearing of the appeal rather than the wording contained in the notice of appeal.
[7] Ground 3(i).
[8] Ground 3(ii). This ground is erroneously expressed in the notice of appeal in terms of being “unreasonable and against the weight of the evidence”. It is expressed above in terms of being unreasonable and incapable of being supported having regard to the evidence: see De Sa v The Queen [2021] SASCFC 22 at footnote 6 per Kourakis CJ, Peek and Blue JJ.
The appellant Shaw appeals against his convictions on counts 1, 2 and 3 on the following grounds:
1.As to counts 1 and 2:
(a) the Magistrate’s finding that he was involved in a joint enterprise with Wanganeen and Humes to take a large quantity of abalone, engaged in abalone fishing with them and maintained observations of their activities in readiness to assist was unreasonable and incapable of being supported having regard to the evidence;[9]
(b) the Magistrate erred in his finding in relation to the operation of the Native Title Act to the facts of the case on grounds 1, 2 and 3 advanced by Wanganeen and Humes.[10]
2.As to count 3:
(a) the Magistrate’s finding that the abalone in catch bag 3 (five undersize abalone) were in his possession for the purpose of sale was unreasonable and incapable of being supported having regard to the evidence;[11]
(b) the Magistrate erred in his finding in relation to the operation of the Native Title Act to the facts of the case because his possession of the contents of catch bag 3 was entirely consistent with the satisfaction of a personal or domestic need as set out in section 211 of the Native Title Act.[12]
[9] Ground 1.1 and 1.2. This ground is erroneously expressed in the notice of appeal in terms of being unreasonable and against the weight of the evidence.
[10] Ground 2.1 and 2.2.
[11] Ground 1.3. This ground is erroneously expressed in the notice of appeal in terms of being unreasonable and against the weight of the evidence.
[12] Ground 2.3.
The appellant Humes appeals against his conviction on count 4 on the following grounds:
1.The Magistrate, having correctly found that he had met the evidentiary burden required for him to rest on the native title defence in connection with the prohibitions on taking abalone under section 74(1)(b), erred in applying the presumption contained in section 72(3)(a) of the Fisheries Management Act 2007 (SA) (the Fisheries Act).[13]
2.The Magistrate, having determined that there was evidence capable of establishing a reasonable possibility that the freezer abalone were in his possession for personal or domestic use, erred in law in being satisfied that he had possession of them for the purpose of sale.[14]
[13] Ground 5. This ground is formulated here as argued on the hearing of the appeal rather than the wording contained in the notice of appeal.
[14] Ground 6. This ground is formulated here as argued on the appeal rather than the specific wording contained in the notice of appeal. This ground as contained in the notice of appeal also includes a contention that the Magistrate erred in finding that three of the abalone were undersize. However, this part of ground 6 was not advanced on the hearing of the appeal.
The respondent informant, Peter Dietman, makes an alternative contention that, if the Magistrate made errors in finding that the abalone were taken by the appellants for commercial purposes, they nevertheless failed to discharge the evidentiary onus of proof that the abalone the subject of each count were taken for the purpose of satisfying their personal, domestic or non-commercial communal needs and in exercise or enjoyment of their native title fishing rights and interests within the meaning of section 211 of the Native Title Act.
The respondent makes an alternative contention that, conceding that the presumption in section 72(3)(a) of the Fisheries Act does not apply to the offence the subject of count 4 being contravention of section 74, nevertheless the second appellant bore the persuasive or legal onus under general principles of proving inconsistency on the facts between section 211 of the Native Title Act and section 74 of the Fisheries Act.
The respondent makes an alternative contention that, on a review of the whole of the evidence, this Court can conclude that a finding of guilt of count 4 was inevitable, that is that the operation of section 211 of the Native Title Act was excluded beyond reasonable doubt.
The appeals were referred by a single Judge for hearing and determination by the Full Court.
Background
The Narungga community is centred on Point Pearce on Yorke Peninsula but extends geographically to the Broughton River and to Port Wakefield and includes the islands off Yorke Peninsula. In addition, some Narungga peoples have moved to live in the greater Adelaide Metropolitan area and other regional areas in South Australia.
Wanganeen is a member of the Narungga community. He grew up at Point Pearce until the age of 15. In 2013 he was living with his partner and children at Arthurton on Yorke Peninsula.
Humes is a member of the Narungga community. He grew up at Maitland on Yorke Peninsula. In 2013 he was living with his partner Kirsty (Wanganeen’s sister) and their three children. He was therefore the brother-in-law of Wanganeen. He is also a third cousin of Wanganeen (they share great-great-grandparents).
Shaw is a member of the Narungga community. In 2013 he was living with his partner and their three children at Murray Bridge. His mother-in-law lived at Maitland. He is a second cousin of Wanganeen (they share great-grandparents).
On 10 March 2013 Shaw travelled to Maitland and stayed overnight at his mother-in-law’s house.
On the morning of Monday 11 March 2013 Wanganeen and Humes decided to go fishing at The Bamboos near Balgowan. Balgowan is north of Point Pearce and west of Maitland. They saw Shaw in the street. He asked them what they were up to. They told him that they were going fishing. He decided to accompany them.
On that morning fisheries officers Hanson and Dixon were observing Humes’ house. At 9.27 am they saw three persons [the appellants] depart from Humes’ house in Wanganeen’s car, a blue Commodore. Wanganeen and Humes took their own fishing equipment. They drove to Shaw’s mother-in-law’s house. Shaw transferred his fishing equipment from his car into Wanganeen’s car. At 9.59 am the fisheries officers saw three persons [the appellants] depart from that house in Wanganeen’s car.
Wanganeen drove to the car park at The Bamboos.
At about 10.50 am the two fisheries officers arrived at The Bamboos. They observed Wanganeen’s blue Commodore, which they described as concealed behind bushes at the car park. They took up a position in the sand dunes to observe the beach.
At about 11.00 am the fisheries officers started observing the beach from the sand dunes using binoculars. They observed Wanganeen and Humes in the water wearing masks, snorkels and flippers and duck diving.
At about 11.15 am the fisheries officers observed Shaw on the beach, put on fins and snorkelling equipment, enter the water, swim out to the vicinity of Wanganeen and Humes and commence duck diving. Shaw’s duck diving was less frequent than that of Wanganeen and Humes.
The fisheries officers alternated observing through their binoculars and filming activities by the appellants on the beach and in the water. The filming was intermittent to conserve battery power.
At about 12.03 pm Shaw was observed to leave the water carrying a catch bag (catch bag 3) and his equipment.
Wanganeen and Humes were observed to remain in the water, duck diving and moving in a generally northerly direction along the line of the reef. They generally stayed within approximately 10 metres of each other.
While Wanganeen and Humes were in the water, Shaw was observed initially to go back into the shallows and do something with catch bag 3. At one point, he was observed to walk towards the dunes with his equipment and catch bag 3 and when he came back into view on the beach he no longer had his equipment or catch bag. From time to time, he was observed walking along the beach or standing in the shallow water.
At about 2.45 pm Wanganeen and Humes were observed to start moving towards the shore. Shaw was observed to look in their general direction and then wade into the water in their direction. Shaw met up with them when they reached knee-high water. Shaw took Wanganeen’s snorkel and his spear gun for him.
During the nearly three hours when Shaw was out of the water, the fisheries officers only identified one occasion when they observed him looking in the general direction of Wanganeen and Humes, being shortly before they left the water. They did not identify any occasion when they observed Shaw looking towards the sand dunes (landwards).
The three appellants were observed to leave the water and walk up the beach towards the sand dunes. Wanganeen was carrying a full catch bag (catch bag 1) and some of his equipment. Humes was carrying a full catch bag (catch bag 2) and his equipment.
At 2.58 pm fisheries officer Bansemer found Wanganeen and Humes hiding in the bushes in the sand dunes. He filmed the discussion. He told them to come out of the bushes. Wanganeen said that they smelled dope and went into the bushes to suss it out. Asked how long they had been out and what they had caught, Wanganeen said that they had been out for about two hours and had caught butterfish. Wanganeen and Humes then accompanied Bansemer to Wanganeen’s car.
At 2.59 pm, in the meantime, fisheries officer Dixon approached Shaw, who was standing alongside the blue Commodore. He had catch bag 3 which contained six abalone, some butterfish and crabs. Dixon asked Shaw where the other two were. He said that they might still be in the water.
At 3.02 pm fisheries officers Sheppard and Cresshull approached Shaw. They filmed the discussion. Asked what the other two caught, Shaw said butterfish and a few abalone. He said that he was not with them in the water, he was on the shore. He said that he did not see their catch bags.
At about 3.15 pm, fisheries officer Bansemer, accompanied by Wanganeen and Humes, arrived at the car and Bansemer departed. Wanganeen told Sheppard that he just got a few blue crabs and he did not have a catch bag. Wanganeen and Humes said that they had arrived at about 1.00 pm. Humes said that he did not have a catch bag and only caught butterfish and crabs. Asked if they caught any abalone, Wanganeen said that they did not and that was why they only had the one catch bag (catch bag 3).
It was put by the fisheries officers that they had seen Wanganeen and Humes in the water with their own catch bags. Wanganeen said that it was not him. It was put that the fisheries officers had video evidence of Wanganeen and Humes duck diving taking bags of abalone and they had seen them with catch bags. Wanganeen denied having any catch bags and said that the fisheries officers must have been seeing things.
The fisheries officers said that they had been watching since 11 am and gave details of what they had observed. The fisheries officers offered to show them the video and asked if they wanted to show the officers where the catch bags were. Wanganeen agreed to do so.
In the meantime, at about 3.18 pm, fisheries officers Cresshull and Bansemer found catch bags 1 and 2 hidden in the bushes near where Bansemer had seen Wanganeen and Humes in the bushes.
As Wanganeen was about to set off to find the catch bags, Cresshull and Bansemer arrived at the car carrying catch bags 1 and 2. Wanganeen agreed that they had been taking abalone. He said that he had approximately 10 kilograms of abalone meat. The fisheries officers said that Shaw had six abalone, which was one over the quota. Shaw said that he did not know what the quota was.
Wanganeen gave the following explanations for catching the amount of abalone that he caught:
Oh it’s just that we’ve got big families and that, I just go you know give some to my grandmother, and some aunties that are on community at Point Pearce
…
Just getting a fuckin feed like I said and giving it out to my grandma and aunties and shit so family … love eatin em anyways. I love putting them in the freezer and just leaving em there you know.. for when I pull it out then I’m right.
Wanganeen was asked if he knew the size limit. He said that you are not allowed to have anything under your palm. When told that he was required to have a measuring device, he said that he was pretty sure that most of them were above the minimum size. He hoped that he did not have any undersize.
The Fisheries Management (General) Regulations 2007 (SA) (the Regulations) by regulation 3(1) and Schedule 2 clause 6 defined an undersize greenlip abalone taken from the relevant waters as being less than 13 centimetres in length (in the shell) or if the meat, having been removed from the shell, weighs less than 113 grams.
Asked whether he had used his spear gun to get the abalone off the bottom, Wanganeen said that he had used a screwdriver. He said that he had dropped it in the bushes because he freaked out when he saw the fisheries officers. Wanganeen expressed concern about whether his car or spear gun would be forfeited. The fisheries officers reassured him that they would not because they were not used in taking the abalone.
Fisheries officers Cresshull and Dixon accompanied Wanganeen to find his screwdriver in the bushes, which they did.
While Wanganeen was away, the fisheries officers questioned Humes. He identified his catch bag as catch bag 2. Asked what he was going to do with the abalone, he said:
Eat em and go to a party in Adelaide so you know take em back and have em for family and that.
Asked why he had taken so many when the bag limit was five, Humes said:
Argh like I said, I eat em, and family as well like because we’ve got a party in Adelaide so you know, take em to Adelaide and feed the family because they all love it, they don’t get to eat em much.
…
This is a one-off, one off thing that I do, that I done, and take em into family because we got a big party, 21st going in Adelaide … Cecil Wanganeen
It was put to Humes that they had seen the fisheries officers coming and they decided to stash the abalone. He denied that they had seen the fisheries officers. He said that they only detoured off the track because they smelled marijuana. He said that he did not know why they did not bring the abalone back to the car.
Humes was asked if he took a measuring device. He said no, all he knew was bigger than your palm. He denied that they were selling abalone. Wanganeen, who by then had returned, also denied that they were selling abalone. Wanganeen, Humes and Shaw said that a bag limit of five per day was too low and asked whether, if their wives accompanied them, they could take 10.
At 4.42 pm the fisheries officers obtained a search warrant to search Humes’ house.
At 4.54 pm fisheries officers attended at the home of Humes and Kirsty in Maitland. They produced the search warrant. They asked Humes if there was abalone on the premises. Humes took them to a chest freezer in the kitchen and produced a plastic bag. The plastic bag had “4.8” written on it and contained 30 shucked abalone. Fisheries officers seized the plastic bag. Humes said that he caught the abalone a while ago at different times, they were just there for when he cooked them up and had a feed and he was not going to sell them.
On 12 March 2013 fisheries officers counted and weighed the abalone in the four bags. The abalone contents were as follows:
·Catch bag 1: 87 shucked abalone (of which 48 were under 113 grams) total weight 9.988 kilograms;
·Catch bag 2: 99 shucked abalone (of which 35 were under 113 grams) total weight 12.205 kilograms;
·Catch bag 3: six shucked abalone (of which five were under 113 grams) total weight 584 grams;
·Plastic bag: 30 shucked abalone (of which three were under 113 grams) total weight 4.329 kilograms net (4.615 kilograms gross with bag).
On Saturday 16 March 2013 a 21st birthday was held for Cecil Wanganeen Jr at the Salisbury Bowling Club. There were between 150 and 200 attendees. They included Wanganeen, Humes and Shaw. Wanganeen, Humes and Shaw did not bring any seafood or other food with them to share at the party. The food for the party was pre-cooked and brought to the Bowling Club. It included soup, pies, pasties and chicken. No one took any produce from an indigenous fishing or hunt to the party. There was no suggestion that there was any traditional Aboriginal food at the party and the evidence suggests that there was not.
In November 2014 an information was laid in the Magistrates Court against the appellants charging them with the four counts referred to above. In the alternative to each of counts 1, 2 and 4, there was an alternative charge of being in joint possession or control of a prescribed class of aquatics resource (undersize green lipped abalone) (count 1: 48 undersize abalone; count 2: 35 undersize abalone; count 4: three undersize abalone).[15]
[15] Fisheries Management Act 2007 section 72(2)(c).
The trial
The prosecution called six fisheries officers who were present at the Bamboos or Humes’ house in Maitland on 11 March 2013. The prosecution also called Kim McCaul as an expert witness concerning Aboriginal customs and practices.
Wanganeen and Humes gave evidence. Shaw did not give evidence. The defence called Professor Neale Draper as an expert witness concerning Aboriginal customs and practices. They called Klynton Wanganeen to give evidence about Narungga fishing customs and practices. They called Cecil Wanganeen Sr to give evidence about such customs and practices and also about Cecil Wanganeen Jr’s 21st birthday party.
Legislative regimes
Fisheries Act
Section 74 of the Fisheries Act as at March 2013 provided:
74—Unauthorised trafficking in fish of priority species prohibited
(1)A person must not, unless authorised to do so under this Act—
(a) traffic in a commercial quantity of fish of a priority species; or
(b) have possession or control of a commercial quantity of fish of a priority species.
Maximum penalty:
(a) in the case of a body corporate—$500 000;
(b) in the case of a natural person—$100 000 or imprisonment for 4 years.
(2)In this section—
traffic in fish includes—
(a) sell fish; and
(b) take fish for sale; and
(c) receive fish; and
(d) process fish; and
(e) engage in any act preparatory to an act referred to in a preceding paragraph.
Regulation 4 and Schedule 3 of the Regulations provided that a commercial quantity of abalone was greater than 25.
Section 72(2) and (3) of the Fisheries Act as at March 2013 relevantly provided:
72—Sale, purchase or possession of aquatic resources without authority prohibited
…
(2)Subject to this section, if a person sells or purchases, or has possession or control of—
(a) an aquatic resource taken in contravention of this Act or a corresponding law; or
(b) an aquatic resource of a protected species; or
(c) an aquatic resource of a prescribed class,
the person is guilty of an offence.
Maximum penalty:
(a) in the case of a body corporate—
(i)if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$250 000;
(ii)in any other case—$100 000;
(b) in the case of a natural person—
(i)if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$50 000 or imprisonment for 4 years;
(ii)in any other case—$20 000.
(3)In proceedings for an offence against subsection (2)—
(a) if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control, it will be presumed, in the absence of proof to the contrary, that the person had that aquatic resource in his or her possession or control for the purposes of sale;
(b) if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control in circumstances in which it is reasonable to presume that the aquatic resources were taken by that person in waters to which this Act applies, it will be presumed, in the absence of proof to the contrary, that the person took the aquatic resources from such waters.
Regulation 8(1)(a) of the Regulations provided that, for the purposes of section 72(2)(c) of the Act, “undersize fish” were prescribed. Regulation 3(1) and Schedule 2 clause 6 defined greenlip abalone taken from the relevant waters to be “undersize fish” if it was less than 13 centimetres in length (in the shell) or if the meat, having been removed from the shell, weighed less than 113 grams.
Native Title Act
In June 1992, in Mabo v Queensland (No 2),[16] the High Court held that the common law of Australia recognises native title rights and interests in relation to land or waters under Aboriginal customary laws.
[16] (1992) 175 CLR 1.
In Mason v Tritton,[17] in October 1991 Mason took from the ocean and shucked 92 abalone. He was charged with having more than 10 abalone in his possession without a licence or permit in contravention of regulation 34(1)(c) of the Fisheries and Oyster Farms (General) Regulation 1989 (NSW) made under the Fisheries and Oyster Farms Act 1935 (NSW).[18] At his trial in the Magistrates Court, he relied on a defence that he took and shucked the abalone in the exercise of his native title rights and those rights were not abrogated by the legislative provisions. He adduced evidence from two experts, Dr Cane and Dr Colley, but did not himself give evidence. The Magistrate found him guilty principally because, not having given evidence, he had not proved that he did not take the abalone for commercial purposes or in exercise of his native title rights. The Magistrate also held that native title recognised by the common law does not extend to customary Aboriginal fishing rights. His appeal to the New South Wales Court of Appeal was dismissed.
[17] (1994) 34 NSWLR 572.
[18] He was also charged with shucking the abalone in or on or adjacent to any waters in contravention of regulation 44(2).
The Court of Appeal did not decide the question whether the legislative provisions abrogated a native title to fish. Priestley JA (with whom Gleeson CJ agreed) formulated a summary of the requirements of the common law for recognition of native title rights based on the decision of the High Court in Mabo v Queensland (No 2) in the following terms:
1.… any claimed native title interest can not now be recognised by the common law unless it was in existence immediately before the common law became the law of the colony.
2.The native interest must be a recognisable part of a system of rules observed by an identifiable group of people connected with a particular locality.
3.A person asserting entitlement to enjoyment of the interest at the present day, must show biological descent from the group which was observing the system of rules of which the interest was part; that is show biological descent dating back to just before the establishment of the common law.
4.A person asserting such entitlement must also show that the biological descendants of the pre-common law group have continued and are continuing to observe the system at the time the claim is asserted.[19]
[19] At 598. (Citations omitted)
Priestley JA said:
The acceptance of Dr Cane’s conclusions would not fulfil the requirements in propositions 2, 3 and 4 … One particularly noticeable failure to meet a requirement of Mabo v State of Queensland [No 2] is the complete absence of any evidence either at first or second hand that in diving for abalone on 9 October 1991 off Dalmeny the appellant was doing so either in the assertion of or pursuant to a system of rules which he recognised and adhered to. This seems to me to have been a fundamental failure of proof in the appellant’s case.[20]
[20] At 604.
Kirby P held that the Magistrate erred in holding that native title recognised by the common law does not extend to customary Aboriginal fishing rights.[21] Kirby P formulated a summary of the requirements of the common law for recognition of native title rights based on the decision of the High Court in Mabo v Queensland (No 2) in the following terms:
In order to establish a successful common law claim for native title of the kind asserted here, within the rules established by Mabo, the evidence must be sufficient to demonstrate:
(1)that traditional laws and customs extending to the “right to fish” were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory…;
(2)that the appellant is an indigenous person and is a biological descendant of that original Aboriginal community;
(3)that the appellant and the intermediate descendants had, subject to the general propositions outlined above, continued, uninterrupted, to observe the relevant traditional laws and customs; and
(4)that the appellant’s activity or conduct in fishing for abalone was an exercise of those traditional laws and customs.[22]
[21] At 579.
[22] At 584.
Kirby P concluded that Mason had failed to establish the defence (in respect of which he bore an evidentiary but not persuasive onus) for reasons similar to, but more detailed than, those articulated by Priestley JA.[23]
[23] At 584-590.
In Derschaw v Sutton,[24] in February 1993 Derschaw, Clifton and Murphy took 66 mullet using nets. They were charged with having possession of fish taken in contravention of the requirements of a Ministerial notice in contravention of section 12(1)(d) of the Fisheries Act 1905 (WA). The Minister had published a notice prohibiting all persons, other than professional fishermen with licences exempting them from the notice, from taking fish by nets other than those prescribed in the schedule. The nets used by the appellants were not so prescribed. The appellants relied on a defence that they were exercising their native title rights to fish. A Magistrate upheld the defence and acquitted the appellants, which was reversed by a single Judge on appeal. The Full Court of the Supreme Court of Western Australia (Wallwork J dissenting) dismissed the defendants’ appeal.
[24] (1996) 17 WAR 419.
Franklyn J (with whom Murray J agreed) adopted the summary formulated by Kirby P extracted at [59] above of the requirements of the common law for recognition of native title rights and concluded that the appellants had not adduced evidence capable of establishing those requirements. Franklyn J said:
In my opinion the evidence before the learned Magistrate was insufficient to give rise to a recognisable claim to a native title fishing right recognisable at common law in that, whilst the evidence established each of the appellants to be an Aborigine and so an indigenous person, it did not go any way to demonstrating, in my view, in respect of any of them that he or she is a biological descendant of an indigenous clan or group who exercised a right to fish in accordance with traditional laws and customs in an area within which Six-Mile Creek was situated … [I]mmediately before the Crown claimed sovereignty over the area. Even had it done so, it failed to demonstrate continuous and uninterrupted observance of the relevant traditional laws and customs and that the taking of fish on the relevant occasion was an exercise of those traditional laws and customs. Consequently, it failed to establish any relevant native title right.[25]
[25] At 427.
Franklyn J also addressed a ground of appeal that raised the question of onus of proof. Franklyn J said:
… there is an evidentiary burden upon an accused wishing to raise a defence to provide the evidentiary foundation for that defence. A defence of native title fishing rights recognised at common law pursuant to the principles established in Mabo (No 2) requires evidence which goes to each of the facts necessary to establish native title. It is not necessary that the evidence be such as to establish the defence on the balance of probabilities, but it must be such as to raise a reasonable doubt as to guilt. To do that it must be sufficient to lay the foundation for the claim of native title fishing rights and consequently, to go to each of the elements necessary to make out that claim. In the absence of evidence going to any such element there is insufficient foundation for the claim to have legal justification. Evidence sufficient to raise a reasonable doubt as to the guilt of the accused having been raised, the onus would then be on the Crown to negative the claim.[26]
[26] At 431.
The Native Title Act was enacted with general effect on 1 January 1994.
Section 10 of the Native Title Act as at March 2013 provided:
10 Recognition and protection of native title
Native title is recognised, and protected, in accordance with this Act.
Section 223 as at March 2013 relevantly provided:
223 Native title
Common law rights and interests
(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
Section 211 as at March 2013 provided:
211 Preservation of certain native title rights and interests
Requirements for removal of prohibition etc. on native title holders
(1)Subsection (2) applies if:
(a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and
(b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and
(ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and
(c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.
Removal of prohibition etc. on native title holders
(2)If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:
(a) for the purpose of satisfying their personal, domestic or non‑commercial communal needs; and
(b) in exercise or enjoyment of their native title rights and interests.
Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.
Definition of class of activity
(3)Each of the following is a separate class of activity:
(a) hunting;
(b) fishing;
(c) gathering;
(d) a cultural or spiritual activity;
(e) any other kind of activity prescribed for the purpose of this paragraph.
It is common ground in this case that the conditions in section 211(1)(b), (ba) and (c) are satisfied. Section 211(2)(b) imports into the conditions the elements of native title as defined by section 223, which in turn imports the elements of native title at common law. For present purposes, we assume that those elements are as stated by Kirby P in Mason v Tritton[27] as extracted at [59] above.[28]
[27] (1994) 34 NSWLR 572.
[28] This is consistent with the approach of the parties in this case. In another case, it may be necessary to consider the formulation by Priestley JA extracted at [57] or other formulations.
Accordingly, the conditions or elements for the operation of section 211 of the Native Title Act on section 74(1)(b) and section 72(2)(c) of the Fisheries Act in the case of an Aboriginal person in possession of abalone are:
1.traditional laws and customs acknowledged and observed by an Aboriginal community extending to the right to fish were exercised by that community immediately before the Crown claimed sovereignty over the territory;
2.the defendant is an indigenous person and is a biological descendant of that original Aboriginal community;
3.the defendant and the intermediate descendants had, subject to certain qualifications, continued uninterrupted to observe the traditional laws and customs;
4.members of the Aboriginal community have communal, group or individual rights and interests under the traditional laws and customs;
5.the Aboriginal community by those laws and customs have a connection with the land or waters;
6.the defendant’s conduct in fishing for and being in possession of the abalone was an exercise of those traditional laws and customs; and
7.the defendant’s conduct in fishing for and being in possession of the abalone was for the purpose of satisfying the personal, domestic or non‑commercial communal needs of the defendant or fellow members of the Aboriginal community.
In order to determine whether these conditions are satisfied, it is necessary to determine the relevant content of the relevant traditional laws and customs before it is possible to determine whether the defendant’s conduct was an exercise of those traditional laws and customs.
In Mason v Tritton[29] Gleeson CJ said:
In seeking to bring his conduct within a system of rules, recognised by the common law, and arguably outside the purview of the relevant regulations, it was necessary both for the appellant to give content to those rules and to bring himself and his activities within their scope.[30]
[29] (1994) 34 NSWLR 572.
[30] At 574.
In Dudley v Department of Primary Industries and Regions South Australia[31] this Court said:
… we do not accept that Nicholson J focused to any inappropriate or erroneous extent upon the need for evidence that gave some definition or content, or metes and bounds, to the claimed right to fish. Such evidence is essential to any conclusion that a native title right exists and that it was being exercised on the occasion in question. … the law’s recognition of native title rights is confined to rights forming part of a system of traditional rules or laws. …in order to establish a native title right, as opposed merely to observable patterns of behaviour, the right must have had its origin in some law or custom having a normative content and deriving from a system or body of norms.
The need for evidence that gives some definition or content to the claimed right is also a logical requirement of the meaningful invocation of any right. Without at least some basic understanding of definition and content, or at least the broad parameters, of the asserted right there is no way of determining whether it is being exercised, or whether a particular activity falls within, or outside of, that right. In the context of the present case, there would otherwise be no way of knowing whether the right extended to the spontaneous taking of a very large quantity of abalone.[32]
[31] [2018] SASCFC 23, (2018) 231 LGERA 13.
[32] At [104]-[105] per Bampton, Lovell and Doyle JJ. (Footnotes omitted)
The reasons for judgment
The Magistrate summarised the prosecution and defence cases and the evidence in detail.
The Magistrate addressed the issue whether the appellants were in joint possession or control of catch bags 1, 2 and 3. This depended on whether the prosecution had proved beyond reasonable doubt that the appellants engaged in a joint enterprise to catch a large quantity of abalone and each appellant held each catch bag pursuant to that joint enterprise.
The Magistrate found that Wanganeen and Humes engaged in a joint enterprise to catch abalone and each held catch bag 1 and 2 pursuant to that joint enterprise. There is no challenge on appeal to this finding.
The Magistrate found that Shaw was involved in the joint enterprise with Wanganeen and Humes. This finding is challenged by all appellants on appeal.
The Magistrate found in the alternative that Shaw was in possession of catch bag 3. There is no challenge on appeal to this finding.
The Magistrate found that Humes was in possession of the abalone in the plastic bag in the freezer. There is no challenge on appeal to this finding.
The Magistrate turned to the question whether the defence had met the evidentiary burden of raising the “native title defence”. The defendants conceded at trial that they bore the evidentiary burden of proof. The prosecution conceded at trial that it bore the persuasive burden of proof beyond reasonable doubt if the defendants discharged the evidentiary burden of proof.
The Magistrate considered the evidence relating to Aboriginal customs and practices. There was no dispute about elements 2 and 5 (referred to at [69] above). The Magistrate found that the defence had satisfied the evidentiary onus in respect of elements 1, 3 and 4. However, apart from the findings summarised in the next paragraph, this was only at a very high level of generality without identifying, for example, the content of the traditional laws and customs the subject of those elements or the communal, group or individual rights and interests under those traditional laws and customs the subject of element 4. In this respect, the Magistrate said:
I am satisfied that there is sufficient credible evidence to establish that there is a reasonable possibility that the defendants and their intermediate descendants have continued uninterrupted to observe the relevant traditional laws and customs of the Narungga people.
For the reasons that follow, I am satisfied that there is credible evidence capable of establishing that the traditional laws and customs of the Narungga people extended to the ‘right to fish’ including the taking of abalone and those rights were exercised by the Narungga community immediately before the Crown claimed sovereignty over the territory.
More specific, but still relatively general, findings made by the Magistrate in relation to the content of the laws and customs were as follows:
… I accept that there is evidence capable of establishing as a reasonable possibility that there was a normative component in the customs and laws of the Narungga people of sharing a fish take with the immediate and extended family.
…
I find that there is sufficient evidence capable of establishing a reasonable possibility that sharing on request is part of a modern adaptation of the traditional Narungga custom or law of sharing with the immediate and extended family.
…
As a general observation I consider that there is sufficient evidence capable of establishing a reasonable possibility that the taking of a relatively large amount of fish including abalone collected by members of the Narungga community from within their traditional area some distance “off country” to share with other members of the Narungga community at an event which has as part of its function or character the expression, or strengthening of kinship between members of the community, is a modern expression of a traditional Narungga custom or law.
The Magistrate turned to the question whether there was sufficient evidence capable of establishing that this occurred in relation to the abalone taken by the appellants the subject of counts 1 to 4.
The Magistrate first considered the abalone the subject of counts 1 to 3 on the basis of his finding of joint enterprise between the three appellants. The Magistrate said that he was satisfied beyond reasonable doubt that the abalone were taken for commercial purposes and hence could not have been taken for satisfying personal, domestic or non-commercial communal needs. This finding is challenged by the appellants on appeal.
The Magistrate said that, if he was incorrect about the issue of joint possession, he was nonetheless satisfied beyond reasonable doubt, for the same reasons, that the abalone the subject of count 1 (catch bag 1) was in the possession of Wanganeen for commercial purposes and the abalone the subject of count 2 (catch bag 2) was in the possession of Humes for commercial purposes. This finding is challenged by them on appeal for the same reasons.
The Magistrate said that, if he was incorrect about the issue of joint possession, he would find that there was sufficient evidence capable of establishing a reasonable possibility that Shaw was in possession of the abalone the subject of count 3 (catch bag 3) for personal or domestic use. The Magistrate did not give reasons for this conclusion. However, the Magistrate found beyond reasonable doubt that Shaw was not in possession of the abalone obtained by fishing in exercise or enjoyment of his native title rights and interests because he was satisfied that the abalone was taken for commercial purposes.
The Magistrate said that he found that there was sufficient evidence capable of establishing a reasonable possibility that Humes was in possession of the abalone the subject of count 4 (the plastic bag in the freezer) for personal or domestic use. The Magistrate gave reasons for this conclusion.
The Magistrate held that, by reason of the presumption contained in section 72(3)(a) of the Fisheries Act, Humes bore the onus of proof on the balance of probabilities to establish that he was not in possession of the 30 abalone for the purpose of sale. The Magistrate said that, given his adverse credibility findings about Humes’ evidence, he was not so satisfied.
Counts 1, 2 and 3: Finding that Shaw was party to the joint enterprise
As observed above, Wanganeen and Humes do not challenge the Magistrate’s finding that they were engaged in a joint enterprise to catch abalone and each held catch bag 1 and 2 pursuant to that joint enterprise.
However, all three appellants challenge the Magistrate’s finding that Shaw was a party to the joint enterprise. Wanganeen and Humes challenge the Magistrate’s finding that they were in joint possession with Shaw of the abalone in catch bag 3. Shaw challenges the Magistrate’s finding that he was in joint possession with Wanganeen and Humes of the abalone in catch bags 1 and 2.
The Magistrate gave the following reasons for his finding in this respect:
In relation to the defendant Shaw I am satisfied on the whole of the evidence that he too was involved in a joint enterprise with S Wanganeen and Humes when he agreed to go fishing with them at Balgowan and where he also fished and took abalone in proximity to them and provided assistance to them while fishing.
The evidence of the participation of Shaw in the joint enterprise is as follows: Although he did not attend at Humes’ home in Maitland, he was spoken to nearby a short time later that morning when he agreed to go fishing. He too was equipped to go fishing including the taking of abalone. On the evidence of S Wanganeen and Humes, Shaw had with him the same equipment other than a speargun. Shaw’s readiness to go fishing for abalone is noteworthy because he resides in Murray Bridge and was merely visiting the area. The availability of fishing gear of itself may not be a decisive factor. I have considered the possibility that Shaw may have brought fishing gear with him to take advantage of any chance or opportunity to go fishing. However, when considered together with the evidence as a whole his readiness to fish for abalone can be considered more than a mere coincidence. The evidence of S Wanganeen and in particular Humes on the circumstances in which Shaw was seen and arrangements made for him to go fishing, was poor. There were inconsistencies about whether Humes was present when S Wanganeen spoke to Shaw about going fishing which were unconvincingly corrected by Humes. There were inconsistencies and a change in evidence about where Shaw was and how the fishing gear was transferred to S Wanganeen’s car.
The evidence that Shaw travelled to Balgowan Beach in S Wanganeen’s car knowing that the decision to travel in one car would mean that he would be at the beach with S Wanganeen and Humes, for the duration of the fishing trip on an extremely hot day, also tends to support the conclusion that he was involved in a joint enterprise.
The evidence of the fisheries officers about the conduct of Shaw at Balgowan supports the conclusion that he was involved in a joint enterprise to take a large quantity of abalone from the waters off Balgowan Beach together with S Wanganeen and Humes. The evidence from the observations of the fisheries officers and video recording taken by fisheries officer Hanson shows that Shaw [the Magistrate then set out the evidence of Shaw’s movements at the beach largely as summarised above].
…
I find that the conduct of Shaw at Balgowan beach involved engaging in abalone fishing together with Wanganeen and Humes and maintaining observations of their activities in readiness to assist if required.
On the whole of that circumstantial evidence, I am satisfied beyond reasonable doubt that Shaw was involved in a joint enterprise with S Wanganeen and Humes involving the taking of a large quantity of abalone contained in catch bags 1 and 2.
On appeal, the respondent accepts that the joint enterprise alleged by the prosecution was that Wanganeen, Humes and Shaw were going to go fishing collectively and aggregate their catches.
The prosecution case on joint enterprise, insofar as it involved Shaw, was circumstantial. The Magistrate implicitly rejected the evidence of Wanganeen and Humes that Shaw merely accompanied them to the beach and took his own abalone but it was still necessary for the prosecution to prove a joint enterprise with Shaw beyond reasonable doubt.
There were two alternative hypotheses in relation to Shaw’s attendance at the beach on 11 March 2013. One hypothesis (the prosecution hypothesis) was that it was pursuant to a joint enterprise to take abalone collectively and aggregate their catches. The other hypothesis (the defence hypothesis) was that Shaw merely accompanied Wanganeen and Humes in their car to the beach and engaged in his own enterprise to take abalone, butterfish and crabs on his own behalf. In order to prove its case on joint enterprise beyond reasonable doubt, it was necessary for the prosecution to prove its hypothesis beyond reasonable doubt and therefore to negate the alternative hypothesis as a reasonable possibility.
Facts that might be seen as supporting the defence hypothesis were that Shaw did not enter the water with Wanganeen and Humes but at least a quarter of an hour later; Shaw remained in the water for about three-quarters of an hour (compared to almost four hours for Wanganeen and Humes); Shaw’s duck diving was less frequent than Wanganeen and Humes; Shaw took only six abalone (compared to 87 and 99 by Wanganeen and Humes respectively); Shaw did not have a speargun (unlike Wanganeen and Humes); and Wanganeen and Humes clearly dived in tandem, remaining within 10 metres of each other.
The principal fact that might be seen as supporting the prosecution hypothesis was that it was a very hot day and, by going with Wanganeen and Humes, Shaw was committed to remain at the beach until Wanganeen and Humes were ready to return to Maitland. However, although it transpired that Wanganeen and Humes ended up staying in the water for four hours, fishing is a notoriously uncertain sport and it could not have been known in advance that this would occur. It may be that Shaw foresaw the possibility, or perhaps even a likelihood, that Wanganeen and Humes would be fishing for so long but this is speculative because there was no evidence on the point.
The prosecution contended that Shaw was keeping a lookout for fisheries officers while Wanganeen and Humes were in the water. However, the fisheries officers did not give evidence of observations of Shaw to this effect, nor does the video recording taken by the fisheries officers evidence that Shaw was doing so.
The Magistrate found that Shaw was maintaining observations of the activities of Wanganeen and Humes in readiness to assist if required. The fisheries officers gave evidence, and the video recording showed, that Shaw spent a substantial amount of time walking along the beach while Wanganeen and Humes were in the water. However, apart from the occasion when Wanganeen and Humes stopped diving, there was no evidence that Shaw was looking in the direction of Wanganeen and Humes while they were in the water. The evidence is entirely consistent with Shaw filling in time while waiting by pacing up and down the beach. The Magistrate did not identify the type of assistance that Shaw was ready to provide if required. If it was merely to assist them in case of dangerous seas or sharks, that would not be evidence of the joint enterprise alleged by the prosecution.
The Magistrate referred to the fact that Shaw had brought fishing equipment from Murray Bridge and considered that his readiness to fish was more than a mere coincidence. However, on the defence hypothesis, Shaw came from Murray Bridge to Maitland prepared and intending to fish. The mere fact that he travelled to the beach with Wanganeen and Humes in furtherance of his own intention to fish does not point towards the prosecution hypothesis as opposed to the defence hypothesis.
The Magistrate referred to the fact that Shaw met up with Wanganeen and Humes as they emerged from the water and carried Wanganeen’s snorkel and speargun for him. This is equally consistent with both hypotheses.
The prosecution relied on the fact that Shaw knew Wanganeen and Humes and was a second cousin of Wanganeen and a third cousin of Humes. This is equally consistent with both hypotheses.
Considered holistically, the evidence was equally consistent with the prosecution hypothesis or the defence hypothesis. The prosecution did not negate the defence hypothesis as a reasonable possibility or prove the prosecution hypothesis beyond reasonable doubt.
Ground of appeal 3(ii) by Wanganeen and Humes and ground 1.1 by Shaw are established. The Magistrate erred in finding counts 1 and 2 proved against Shaw and count 3 proved against Wanganeen and Humes. Those convictions must be quashed.
Counts 1 and 2
Finding that Wanganeen and Humes took abalone for sale
The Magistrate said that he was satisfied beyond reasonable doubt that the abalone were taken for commercial purposes (and hence could not have been taken for satisfying personal, domestic or non-commercial communal needs).
Wanganeen and Humes contend that the Magistrate made seven errors of fact or reasoning in reaching this conclusion.
The Magistrate gave the following reasons for finding beyond reasonable doubt that the abalone were taken for commercial purposes (numbering inserted for identification):
… on the evidence I reject as a reasonable possibility that the defendants were acting for this purpose [satisfying personal, domestic or non-commercial communal needs]. The evidence of the defendants S Wanganeen and Humes on this topic lacks credibility and is inconsistent.
1.The circumstances in which Wanganeen claim to have been invited were not consistent with the evidence of Cecil Wanganeen who was involved in organising the function. S Wanganeen claims to have received a written invitation approximately one month before the event. Cecil Wanganeen says that no written invitations were issued and invitations were communicated through Facebook and by word of mouth. Humes says he did not receive a written invitation and was told of the party by S Wanganeen the previous weekend, namely the long weekend fishing trip.
2.S Wanganeen says that he was contacted by Cecil Wanganeen who asked him to bring fish and abalone to the function. Cecil Wanganeen was emphatic in his evidence that he had made no such request and that S Wanganeen offered to bring seafood which was a welcome suggestion.
3.Humes told the Court that the plan for preparing the abalone was to cook them on the barbecue after they had been minced into patties. He said all of that preparation and cooking was to happen at the Bowling Club. He said the barbecue was there and “set up” when he arrived but it was “not going”. He said that the barbecue was used at the 21st birthday for chops, sausages, burgers. He said there was also finger food, pies and stews.
Cecil Wanganeen says that all the food preparation was done at home and the food reheated at the function at the Bowling Club. He said there were pies and pasties and soup. There was chicken which was cooked at home and reheated at the function. There was no other meat provided and no cooking.
4.S Wanganeen said that there were Narungga people and also some Kaurna people at the party. He considered the Kaurna people connected with the Narungga. Cecil Wanganeen said that all the guests were family members and Narungga.
5.S Wanganeen told the Court that he had not provided a large amount of abalone for parties in the past and that he had not supplied seafood to the Narungga Gynburra Festival. He said that he regularly took abalone to his uncle Cecil in Adelaide for family gatherings. He told the court that this was a large catch by his standards.
Humes told the court that when he went fishing for abalone with his family the total family catch would be about 25 or 30. His catch at Balgowan beach on that day was exceptionally large by his standards. The evidence suggests that he worked profusely while in the water taking what he could, to some extent indiscriminately as to size despite his evidence about the traditional learnings about measuring the size of the abalone, taking 99 abalone.
These aspects of the evidence of Wanganeen and Humes lack credibility.[33]
6.I also find that Wanganeen and Humes lack credibility based on the admitted lies told by them to the fisheries officers at Balgowan Beach about whether they had been fishing and were in possession of abalone. The lies told to the fisheries officers may be explained by reasons other than they were said out of a consciousness of guilt and therefore, in my view, are not capable of demonstrating a consciousness of guilt beyond reasonable doubt. However, the fact that the lies were told about material issues and sustained, even after the fisheries officers informed the defendants of their observations and were only admitted when the abalone were recovered, speaks strongly against them as credible witnesses.
7.There is evidence that a 21st birthday function was conducted on Saturday following the alleged offences. However, I do not accept that the abalone caught by the three defendants was intended for that purpose.
8.The sheer number of abalone taken reflects non-personal or domestic use. The accounts of the defendants S Wanganeen and Humes [are that] the catch exceeded the usual practice for personal use and sharing with immediate and extended family.
The evidence of Jeffrey Newchurch is relevant here. As a member of the Narungga community he expresses the opinion that a large catch is not consistent with traditional custom and was reflective of a commercial purpose.
The defendants had between them caught almost 200 abalone and it defies belief that this amount was intended for sharing with family.
[33] In the Magistrate’s reasons for judgment, the passage numbered for identification as 6 forms part of a paragraph commencing with this sentence. However, the context shows that this sentence applies to, and belongs with, the two previous paragraphs numbered as 5 and not as part of the passage numbered as 6.
It is convenient to address first the asserted errors in respect of the paragraphs numbered 8 before turning to the asserted errors in respect of the paragraphs numbered 1 to 7.
Paragraphs numbered 8
The appellants contend that, in finding that the number of abalone caught by Wanganeen and Humes was too great for sharing with family, the Magistrate ignored or overlooked the evidence that most of the catch was intended for sharing at Cecil Junior’s 21st birthday party.[34] If the Magistrate had reasoned that the sheer number of abalone caught were inconsistent with a combination of sharing with family and taking to a 21st birthday party, this would have been a fundamental error vitiating the Magistrate’s overall conclusion. However, considered in context, in paragraphs numbered 1 to 6, the Magistrate gave six reasons for finding at paragraph numbered 7 that the abalone was not intended for the 21st birthday function and this was an invention by Wanganeen and Humes to justify the size of their catch. The findings are paragraphs numbered 8 then address the position once the party has been removed as a major destination for the abalone, leaving sharing with family to be considered. This asserted error is not established.
[34] Grounds of appeal 1(iv) first part and 2 first part.
The appellants contend that, in finding that the number of abalone caught by Wanganeen and Humes was too great for sharing with family, the Magistrate ignored evidence by Klynton Wanganeen as to the large size of abalone catches taken by Narungga men which were caught for the purpose of sharing.[35] That evidence was that on one occasion Klynton Wanganeen and four other Narungga men caught a total of approximately 200 abalone, which they divided equally to give each man 35 to 40 abalone. He put some in the fridge or freezer for eating and gave others away to relatives. The Magistrate, in the section of his reasons for judgment that summarised the evidence, summarised Klynton Wanganeen’s evidence in detail including this evidence. This evidence involved 35 to 40 abalone which was less than half the numbers taken by each of Wanganeen and Humes. The mere fact that the Magistrate did not refer to this evidence when making the finding that the abalone were taken for commercial purposes involved no error. This asserted error is not established.
[35] Ground of appeal 1(v).
The appellants contend that the Magistrate erred in summarising the opinion of Jeffrey Newchurch in the second paragraph at the paragraphs numbered 8 above.[36] Jeffrey Newchurch’s statement was contained in Dr Draper’s first report, which included the following passage:
Jeffrey Newchurch said that he believes that the only way to distinguish legitimately between a “cultural” versus a “commercial” catch of fish is to consider it in terms of a traditional sharing situation. It is about the purpose of the catch, and the quantity which suits that purpose. He summed up the cultural considerations as “sharing, caring, and teaching” … He says that sharing is the difference between cultural fishing and commercial fishing, which is all about money.
[36] Ground of appeal 1(iv) second part.
We accept the appellants’ submission that Jeffrey Newchurch’s statement drew a purposive, rather than a quantitative, distinction between cultural fishing and commercial fishing and did not say that a large catch is not consistent with traditional custom and is reflective of a commercial purpose. However, Jeffrey Newchurch did refer to a quantity which suits the purpose. In context, the Magistrate was effectively saying that the quantity of abalone taken by Wanganeen and Humes exceeded the purpose of sharing with family (and was not referring to a purpose of taking abalone to the 21st birthday, which the Magistrate had already rejected). In these circumstances, although the Magistrate erroneously summarised Jeffrey Newchurch’s statement, it was not a material error.
Paragraphs numbered 1 to 7
The Magistrate’s reasoning that the abalone was caught for the purposes of sale was based on the six matters contained in the paragraphs numbered 1 to 6 at [105] above. The appellants contend that the Magistrate made four errors of fact or reasoning in reaching this conclusion.
The first asserted error is an error of fact at paragraph numbered 1.[37] The Magistrate said that Wanganeen gave evidence that he received a written invitation approximately one month before the 21st birthday and relied on an inconsistency between this evidence and that of Cecil Wanganeen Senior that no written invitations were sent out. In fact, Wanganeen did not give evidence that he received a written invitation. His evidence, when asked what was the form of the invitation that he received, was “It was just a phone call and - just to say that we’re having a party on whatever that date was”.
[37] Ground of appeal 1(i).
The respondent concedes that the Magistrate made this factual error but contends that this was not material to the finding of guilt. It is ultimately necessary to consider all errors that are established collectively rather than any one error in isolation.
The second asserted error is an error of reasoning at paragraph numbered 4.[38] The Magistrate said that Wanganeen gave evidence that there were some Kaurna people at the party, which was inconsistent with evidence of Cecil Wanganeen that all of the guests were Narungga people. The Magistrate treated this as a material inconsistency reflecting adversely on Wanganeen’s credit.
[38] Ground of appeal 1(ii).
Wanganeen’s evidence was contained in the following passage during re-examination:
Q.Were there any non-Narungga people at the birthday.
A. There would have been some probably like Kaurna people. Kaurna is like the tribe of Adelaide. Because he’d have a lot of friends down here as well, cousin Cecil Junior that is.
Cecil Wanganeen’s evidence was contained in the following passage during his evidence in chief:
Q.Who worked out the guest list of who was going to be invited.
A.Nah we just invite everyone that comes they come. Yeah so we get the aunties and the uncles and then their kids and their kids so you get a few people out there.
…
Q.Were all these people related to you and your son.
A.Yeah all Narunggas, yep.
Q.So you would call the people the Narungga.
A.Yeah Narungga people.
It was not put to Cecil Wanganeen that there were no people at the party that might be regarded as Kaurna people and the foundation for a finding of inconsistency was not laid by the prosecution. In addition, Wanganeen’s evidence was not that he knew that some people at the party were Kaurna people but that it was inherently likely that there were some Kaurna people. This was consistent with the evidence of Dr Draper, who said that “Kaurna and Narungga families, as far back as, for instance these genealogies go … tend to be inextricably linked”. Accordingly there was not an inconsistency between the evidence of Wanganeen and Cecil Wanganeen capable of reflecting adversely on Wanganeen’s credit.
In addition, Wanganeen’s evidence that there were probably some Kaurna people at the party was incapable of assisting his case at trial. On the contrary, if he were giving false evidence to assist his case, it would have been the reverse, namely evidence that all of the people at the party were Narungga people. Accordingly, the Magistrate erred in relying on this evidence as reflecting adversely on Wanganeen’s credit. This asserted error is established.
The third asserted error is an error of reasoning at paragraph numbered 3.[39] The Magistrate said that Humes gave evidence that the barbecue was used at the 21st birthday for chops, sausages and burgers, which was inconsistent with evidence of Cecil Wanganeen that there was no meat provided and no cooking at the party. The Magistrate treated this as a material inconsistency reflecting adversely on Humes’ credit.
[39] Ground of appeal 1(iii).
Humes’ evidence was contained in the following passage in re-examination:
Q. When you got there was the barbie going.
A. No it wasn’t going at the time when we got there because yeah.
Q. Was the barbeque eventually prepared.
A. It was all set by the time we got there so.
Q. It was set up.
A. Like the - everything was prepared and set up on the tables by the time we got there.
Q. So what was cooked.
A. Finger foods, pies, stews and all that as well.
Q. What was the barbeque used for.
A. Chops, sausages, burgers and all that as well so.
It is clear that Humes said that he did not see anything being cooked on the barbecue because the food was already on the tables when he arrived and he merely surmised that a barbecue had been used to cook chops, sausages and burgers.
Cecil Wanganeen’s evidence was contained in the following passage during cross-examination:
Q. They didn’t bring any meat to cook.
A. No we cooked that ourselves. All the aunties.
Q. What meat was that, the chicken.
A. Chicken, we had soup and you’ll probably have meat in that so that’s all right.
Q. Did you have a barbeque.
A. We cooked it at home and all we do was eat it at - where we was at the Salisbury Bowling Club and that was it.
Q. You cooked it at home did you say.
A. Yeah and then heat it up, that’s all we did for everybody that came along.
Cecil Wanganeen did not give evidence that no meat was provided; on the contrary, he gave evidence that chicken was provided. He was not asked whether there were any chops, sausages or burgers at the party. A proper foundation for a finding of inconsistency, and that Humes’ evidence was deliberately false, was not laid by the prosecution. Cecil Wanganeen’s evidence that all of the cooking was done at home and reheated at the Bowling Club was not inconsistent with the evidence of Humes who merely assumed that food was cooked on the barbecue at the Bowling Club. In addition, what was actually cooked at the barbecue after Wanganeen and Humes failed to bring abalone was a remote collateral issue that could have little bearing on their intention on the previous Monday.
The Magistrate made significant errors in his findings in relation to the barbecue. While there may have remained a degree of inconsistency, it was insufficient to reflect adversely on Humes’ credit (particularly bearing in mind that he was giving evidence in 2017 about events in 2013). The errors by the Magistrate vitiate his reliance on alleged inconsistencies in relation to the barbecue.
The fourth asserted error is an error of reasoning at paragraph numbered 2.[40] The Magistrate said that Wanganeen gave evidence that Cecil Wanganeen asked him to bring fish and abalone to the function, which was inconsistent with evidence of Cecil Wanganeen that he made no such request but merely accepted Wanganeen’s offer to bring seafood. The Magistrate treated this as a material inconsistency reflecting adversely on Wanganeen’s credit.
[40] Ground of appeal 1(iii).
Wanganeen’s evidence was contained in the following passage in cross-examination:
Q. Had someone told you that you’re to bring the abalone.
A. Me uncle.
Q. Which uncle was that.
A. Uncle Cecil, Wanganeen that is, that was for the party.
Q. He said you have to bring abalone, you couldn’t have taken any other kind of fish.
A. Butterfish.
Q. So you could have taken butterfish.
A. Would have been whatever I had, crabs, butterfish, abalone - yeah we would have probably bought down.
Cecil Wanganeen’s evidence was contained in the following passage during his evidence in cross-examination (questions numbered for identification):
Q1.You organised the party.
A. No the Mrs did.
Q2. So are you aware of what food she arranged.
A. Yeah she made all the aunties bring along pies, pasties and soup as well just in case and thought it’d be nice with a bit of seafood would be all right just to share around with the people.
…
Q3. You invited Simon Wanganeen, Henry Humes, John Shaw and Kirsty Wanganeen.
A.Yeah they all first cousins.
…
Q4.You saw all of them at the party.
A.Yeah but they didn’t come with nothing so.
…
Q5.But you asked them to bring abalone.
A.Yes, yep. We thought it - ... so we can share it with people.
Q6.You asked them.
A. Never asked him. He rang me and said ‘You want me to bring some abalone’ and I said ‘Yeah it’d be great, share it around’. So -
Q7. It was Simon Wanganeen’s idea.
A. Yeah.
Q8. He suggested it to you by phone and you agreed.
A. Yeah.
Humes’ conviction on count 4 must be quashed and the matter remitted (together with counts 1 and 2) to the Magistrates Court for a fresh trial.
Respondent’s second alternative contention
As observed above, the respondent makes an alternative contention that, on its proper construction or on the application of general principles, the persuasive or legal onus of proof of the operation of section 211 of the Native Title Act lies, on the balance of probabilities, on the party asserting its operation. The appellants take issue with that contention.
It is not necessary for this Court to decide this issue on appeal because, regardless of its resolution, the matter must be remitted to the Magistrates Court for a fresh trial. The issue arose only during the hearing of the appeal and this Court does not have the benefit of comprehensive submissions from the parties on the issue. In these circumstances, it is undesirable to decide the issue on this appeal. The question should be left to be determined (if necessary) in an appropriate case when it necessarily arises and after full argument. However, we identify the issue and the parties’ contentions for the benefit of the Magistrate who hears the fresh trial.
It is common ground that a person seeking to rely on the operation of section 211 of the Native Title Act to override the operation of another law (whether Commonwealth, State or Territory) bears the evidentiary onus of proof. The following discussion is confined to the ultimate or persuasive onus of proof. However, caution is required when considering authorities that refer to onus because it is not always clear whether they are referring to the evidentiary onus or the persuasive onus.
The incidence (and standard) of the persuasive onus varies between civil and criminal proceedings. In both cases the rules about the incidence of the burden of proof were developed by the common law because originally all (or almost all) causes of action were common law (or equity, which followed the common law) causes of action and all (or almost all) offences were common law offences. Each cause of action or offence had elements, in respect of which the onus of proof lay on the plaintiff or prosecution. Some causes of action or offences had specific defences peculiar to them. In addition there were general defences to causes of action or offences that applied universally. When statutes created statutory causes of action or statutory offences, they were usually silent as to the onus of proof and in broad terms they were fitted into the common law approach. Statutory causes of action and offences were also generally subject to the general common law defences.
In respect of criminal proceedings, until 1935 it was not settled whether in respect of a defence the defendant bore only an evidentiary onus or also bore the persuasive onus.
In 1935, in Woolmington v Director of Public Prosecutions,[55] the House of Lords held that the persuasive burden of proof lies on the prosecution beyond reasonable doubt to prove all elements of an offence and to disprove all defences (in respect of which an evidentiary onus lies on the defendant), subject only to two exceptions. The first exception, which “stands alone”, is the result of the 1843 decision in McNaughton[56] that a persuasive onus of proof of the defence of insanity lies on the defendant on the balance of probabilities. The other exception is, self‑evidently, that this is subject to statute. Thus, an evidentiary onus lies on the defendant but the persuasive onus lies on the prosecution in respect of general common law defences such as self-defence, provocation and duress.
[55] [1935] AC 462.
[56] (1843) 10 Cl & Fin 200; 8 ER 718.
In Woolmington Viscount Sankey LC (with whom Lord Hewatt CJ, Lord Tomlin and Lord Wright agreed) said:
Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception… No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.[57]
[57] At 481-482.
In 1974, in R v Edwards[58] the Court of Appeal in England held that, in the case of a statutory offence, if on its proper construction it prohibits the doing of an act subject to a proviso, the onus of establishing facts coming within the proviso lies on the defendant and it held that this was the persuasive onus (not just an evidentiary onus).
[58] [1975] QB 27.
In Edwards Lord Widgery CJ, Lawton LJ and Ashworth J said:
… over the centuries the common law … has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged… This exception … is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception.
…
Two consequences follow from the view we have taken as to the evolution and nature of this exception. First, as it comes into operation upon an enactment being construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal or, as it is sometimes called, the persuasive burden of proof. It is not the evidential burden.[59]
[59] At 39-40.
In Australia, it had already been held before Edwards that, if on its proper construction a statute creates a proviso, the onus of proof lies on the defendant but it was not identified whether this was the persuasive onus or the evidentiary onus. For example, in Dowling v Bowie[60] Dixon CJ (with whom Fullagar and Kitto JJ agreed) said:
The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification. The distinction has been criticized as unreal and illusory and as, at best, depending on nothing but the form in which legislation may be cast and not upon its substantial meaning or effect. The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it.[61]
[60] (1952) 86 CLR 136.
[61] At 139-140. (Citations omitted)
Although originally framed as a common law rule, this is now seen as a matter of construction of the individual statute.
As a matter of terminology, it is convenient to call an element of the offence that qualifies other elements an exception and to call an excuse outside the elements of the offence a proviso.
In Australia, there is a divergence in the authorities whether the onus of proof in respect of a proviso in a statutory provision creating an offence (when the statute is construed as placing an onus of proof on the defendant) places only an evidentiary onus or also a persuasive onus on the defendant. The parties cite different cases expressing opposite views and cases in which divergent views were expressed within a single case.
In Samuels v Stokes[62] the High Court considered the interaction between section 18 of the Police Offences Act 1953 (SA), which created the offence of loitering in a public place, and section 6 of the Public Assemblies Act 1972 (SA), which provided that a person participating in an approved assembly did not incur any civil or criminal liability and an act permitted by the section was lawful notwithstanding the provisions of any other Act. There was no proviso contained in the offence-creating section but rather a right or general exemption contained in a different statute. Menzies J and Gibbs J held that the evidentiary onus of proving the section 6 facts lay on the defendant but the persuasive onus lay on the prosecution. Barwick CJ held that the persuasive onus lay on the defendant. McTiernan J did not express an opinion on this question.
[62] (1973) 130 CLR 490.
In Director of Public Prosecutions v United Telecasters Sydney Ltd[63] Brennan, Dawson and Gaudron JJ said:
The rule laid down in Woolmington v Director of Public Prosecutions, that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be “subject to ... the defence of insanity and subject also to any statutory exception”. It is made clear in Reg. v Edwards and Reg. v Hunt that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused…, but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form.[64]
[63] (1990) 168 CLR 594.
[64] At 600-601. (Footnotes omitted)
In Chugg v Pacific Dunlop Ltd[65] Dawson, Toohey and Gaudron JJ (with whom Deane J agreed and Brennan J generally agreed) said:
For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an “exception”), which serves to take a person outside the operation of a general rule. The distinction does not depend on the rules of formal logic. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention “to impose upon the accused the ultimate burden of bringing himself within it”. The intention may be discerned from express words or by implication.[66]
[65] (1990) 170 CLR 249.
[66] At 257. (Citations omitted)
In Stevenson v Yasso[67] the Queensland Court of Appeal held by majority (McMurdo P dissenting) that the persuasive onus of establishing a “defence” under section 14 of the Fisheries Act 1994 (Qld), which provided that an Aborigine may take fisheries resources under Aboriginal tradition, to a prosecution for unlawfully possessing fishing apparatus in contravention of section 84(1) of that Act lay on the defendant.[68]
[67] [2006] QCA 40, [2006] 2 Qd R 150.
[68] At [94]-[97] per MacPherson JA and [148]-[151] per Fryberg J.
In Muscat v Douglas[69] section 81(2)(b) of the Censorship Act 1996 (WA) created an offence of possessing an X-classified film for sale or public exhibition. Section 32(1) provided that, if a classified film was modified, it became unclassified. McLure JA and Buss JA held that section 32 did not create a proviso and the evidentiary and persuasive onus of proof lay on the prosecution to prove that the film had not been modified. Roberts-Smith JA dissented, holding[70] that section 32 created a proviso but only an evidentiary onus, and not the persuasive onus, lay on the defendant, applying Samuels v Stokes.[71]
[69] [2006] WASCA 107, (2006) 32 WAR 49.
[70] At [25]-[36].
[71] (1973) 130 CLR 490.
In Muscat McLure JA observed that the question whether the onus or proof cast on a defendant at common law is the evidentiary or persuasive onus was unclear, saying:
At common law, the burden is on an accused to establish any statutory exemption, exception, proviso or condition which in effect excuses an accused from liability for a statutory offence. It is unclear whether the common law casts a legal or evidentiary burden on the accused.[72]
[72] At [68]. (Citation omitted)
In Momcilovic v The Queen[73] French CJ said:
A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden.[74]
[73] [2011] HCA 34, (2011) 245 CLR 1.
[74] At [44].
It is common ground that section 211 of the Native Title Act does not expressly address the question of onus. The appellants contend that, in the context of a prosecution, section 211 impliedly imposes the persuasive onus of proof on the prosecution in accordance with the “golden thread” running through the criminal law identified by the House of Lords in Woolmington.[75] They contend that the exception/proviso dichotomy does not apply and the closest analogy is the decision of the High Court in Samuels v Stokes[76]; alternatively, if it does apply, section 211 creates an exception rather than a proviso; and alternatively, if it creates a proviso, only the evidentiary onus of proof is cast on the defendant in the context of criminal proceedings.
[75] [1935] AC 462.
[76] (1973) 130 CLR 490.
The respondent contends that section 211 does not address the persuasive onus of proof expressly or impliedly. Alternatively, if it does so impliedly, it evinces an intention that the proponent of the operation of section 211 on another law bears the onus of proof on the balance of probabilities. If the exception/proviso dichotomy applies, it creates a proviso and the persuasive onus of proof of the proviso lies on the defendant in criminal (or civil) proceedings.
The respondent contends that there is a general principle that a party who relies on the operation of a superior statute to exclude the operation of an inferior statute, such as a Commonwealth statute prevailing over a State statute under section 109 of the Constitution, freedom of interstate trade and commerce prevailing over a State or Commonwealth statute under section 92 of the Constitution or freedom of political communication implied in the Constitution prevailing over a State or Commonwealth statute. The appellants take issue with this contention. The parties cite the following cases in which differing views have been expressed in these situations.
In Madsen v Western Interstate Pty Ltd; Ex parte Western Interstate Pty Ltd[77] the Full Court of the Supreme Court of Queensland (Wanstall J dissenting) held that the burden of proof that otherwise unlawful conduct was in interstate trade or commerce protected by section 92 of the Constitution lies on the balance of probabilities on the party relying on section 92. In Horne v Tweed River Transport Pty Limited[78] the Full Court followed Madsen.
[77] [1963] Qd R 434 at 446 per Philp ACJ and 473 per Hart J.
[78] (1967) 61 QJPR 114 at 117 per Gibbs J (with whom Hanger and Stable JJ agreed).
In Allied Interstate (Qld) Pty Ltd v Barnes[79] the Full Court (by majority) had followed the decisions in Madsen and Horne. McTiernan J (dissenting in the result) would have dismissed the appeal and held that the defendant bore the persuasive onus of proof on the balance of probabilities. The remaining Justices allowed the appeal on the ground that the defendant had discharged any onus of proof on the balance of probabilities and it was unnecessary to decide who bore the persuasive onus. Windeyer J, however, expressed the opinion obiter that the defendant bore an evidentiary onus but the prosecution bore the persuasive onus beyond reasonable doubt.
[79] (1968) 118 CLR 581.
It should be observed that the constitutional question raised by the engagement of section 92 is one of a limitation on the power of the legislature and the invalidity of the statute. Questions of invalidity may lead to a reading down of a statutory offence provision in a way that raises questions analogous to whether, on the proper construction of a provision, it is a negative element of liability or a proviso operating by way of defeasance.
The respondent draws attention to the recent decision of the High Court in Clubb v Edwards,[80] although the respondent submits that section 211 of the Native Title Act does not give rise to a need to determine any constitutional facts or to the special principles that apply to the determination of constitutional facts. In that case, Mrs Clubb contended that section 185D of the Public Health and Wellbeing Act 2008 (Vic) was invalid because it infringed upon the implied freedom of political communication. The Commonwealth Attorney-General contended that the issue of constitutional invalidity need not be decided because Mrs Clubb had not adduced any evidence at trial that she was engaged in political communication. Mrs Clubb contended in turn that the prosecution bore the onus of proving beyond reasonable doubt that she was not engaged in political communication.
[80] [2019] HCA 11, (2019) 267 CLR 171.
Gageler J, Gordon J and Edelman J accepted the Commonwealth Attorney-General’s contention, observing that Mrs Clubb had not adduced any evidence that she was engaged in political communication. Kiefel CJ, Bell and Keane JJ (jointly) and Nettle J found it unnecessary to decide this point and decided the substantive invalidity issue.
Nettle J said that, if it had been necessary to decide the point, it would have been necessary to decide on whom the evidentiary onus lay but proceeded on the basis that in any event the persuasive onus would have lain on the prosecution.[81]
[81] At [239].
Gageler J recognised that the constitutional removal of legislative power to burden unreasonably political communication may, by way of reading down, leave an offence provision subject to a proviso or exception. However, his Honour found that there was no sufficiently probative material in that case to establish the threshold proposition that the provision burdened political communication:
Severance would operate in substance to require recognition of a statutory exception for prohibited behaviour which amounts to political communication.
Whether or not conduct the subject of a charge amounts to political communication is a question of constitutional fact in respect of which the whole notion of a legal onus of proof is inapposite. Neither the statutory rule in Victoria that an accused who wishes to rely on an exception must present evidence that suggests a reasonable possibility of the existence of facts establishing the exception nor the common law rule which would cast the burden on the accused to prove the existence of facts establishing the exception on the balance of probabilities therefore have application. Whether valid in its entirety or invalid and severable in its application to political communication, the statutory prohibition must be treated by a court as applicable according to its terms to conduct proved by the prosecution absent the court being apprised of material sufficiently probative for the court to be satisfied that the conduct amounted to political communication.
If the freedom of political communication was to be relied on to impugn her prosecution for the offence created by s 185D of the Public Health Act, the practical onus was on Mrs Clubb to bring such material forward. She did not do so.[82]
[82] At [151]-[153]. (Footnotes omitted)
Gordon J said:
When read with a provision which might otherwise have an application in excess of State legislative power – here, s 185D of the Public Health and Wellbeing Act – s 6(1) of the Interpretation of Legislation Act operates in substance to carve out an exemption from the generality of the provision. Were it not concerned with “constitutional facts”, the exception would cast the onus of proof on the party seeking to take advantage of it. Constitutional facts, however, do not lend themselves to ordinary notions of onus and burden of proof.
It is for the Crown to prove the elements of an offence beyond reasonable doubt. Consistent with the construction just advanced, characterisation of a communication as political, or non-political, is not an element of the offence. Whether an accused engaged in political communication would be relevant if, and only if, the accused adduced evidence to seek to establish that fact. Only then would it be necessary for the Crown to seek to address that evidence.[83]
[83] At [347]-[348]. (Footnotes omitted)
Edelman J said:
Mrs Clubb’s submission that it was for the prosecution to prove that her speech was not political should not be accepted. Interpretative issues, including reading down or severance of provisions imposing criminal liability, establish the elements that the prosecution must prove. But the process of determining the essential meaning of a provision, or its partial disapplication, is an issue for the court and not a matter upon which any party bears an onus. If a provision is to be disapplied from particular facts or circumstances then unless the court is satisfied of the presence of those facts or circumstances its duty is to apply the legislation.[84]
[84] At [442].
The appellants cite the decisions of Kirby P in Mason v Tritton[85] and Franklyn J (with whom Murray J agreed) in Derschaw v Sutton[86] that the persuasive onus of proof in respect of a native title defence at common law lies on the prosecution and contends that the same approach is applicable to the native title defence under section 211 of the Native Title Act. However, the discussion in those cases proceeded on a construction of State offences, absent any constitutional question, that it was a negative element of the offence that the conduct engaged in was not an exercise of native title rights. The appellants also cite the decision of Underwood J in Dillon v Davies[87] that the defendant bore an evidentiary onus, but the prosecution bore the persuasive onus, in respect of the operation of section 211 of the Native Title Act on the offence of taking undersized abalone under the Sea Fisheries Regulations 1962 (Tas).
[85] (1994) 34 NSWLR 572.
[86] (1996) 17 WAR 419.
[87] (1998) 8 Tas R 229.
The question in this case is not one of bare construction of section 72 and section 74 of the Fisheries Act unaffected by Constitutional considerations. Nor does it involve a reading down of those provisions by reason of partial Constitutional invalidity. The question is one of the inoperability of otherwise valid State legislation in the circumstances of the alleged offence by reason of section 109 inconsistency.
Given the complexity of the issue concerning the persuasive onus of proof, the Magistrate who hears the fresh trial should make findings in relation to the conditions or elements for the operation of section 211 on alternative bases, namely on the assumption that the prosecution bears the persuasive onus of proof beyond reasonable doubt and on the assumption that the defence bears the persuasive onus of proof on the balance of probabilities. If the Magistrate finds that the conditions for the operation of section 211 have been negated by the prosecution beyond reasonable doubt or have been proved by the defence on the balance of probabilities, the Magistrate will not need to determine the legal issue as to who bears the persuasive burden of proof in respect of that condition.
Conclusion
In relation to the appeal by Wanganeen and Humes, we:
1.allow the appeal;
2.set aside the convictions on counts 1 to 3;
3.enter an acquittal on count 3;
4.remit counts 1 and 2 to the Magistrates Court for a fresh trial.
In relation to the appeal by Humes, we:
1.allow the appeal;
2.set aside the conviction on count 4;
3.remit count 4 to the Magistrates Court for a fresh trial.
In relation to the appeal by Shaw, we:
1.allow the appeal in respect of counts 1 and 2;
2.dismiss the appeal in respect of count 3;
3.set aside the convictions on counts 1 and 2;
4.enter acquittals on counts 1 and 2.
We will hear the parties in relation to costs.
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