Wanganeen v Dietman; Shaw v Dietman - [2021] SASCFC 25

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] SASCFC 25
Decision Date: 14 May 2021

CaseChat Overview and Summary

The appeals concerned the convictions of Wanganeen, Humes, and Shaw for taking a prohibited type of fish. The appellants, who identified as members of the Narungga community, sought to rely on a defence of native title rights to fish. The matter was heard by the Full Court of the Supreme Court of South Australia following a referral from a single judge.

The central legal issues before the Full Court were whether the Magistrate had erred in finding that the appellants had failed to discharge the evidentiary burden of establishing a native title defence, and consequently, whether the convictions were sound. Specifically, the court had to consider the nature and sufficiency of the evidence required to establish a native title right to fish, including the need for evidence defining the content and parameters of such a right, and whether the appellants' activities constituted an exercise of such a right.

The Full Court, referencing its decision in *Dudley v Department of Primary Industries and Regions South Australia*, emphasised that the recognition of native title rights is confined to those forming part of a system of traditional rules or laws with normative content. The court reiterated that to establish a native title right, as opposed to mere observable behaviour, evidence must demonstrate that the right originated from a law or custom with normative content. Furthermore, the court highlighted the logical necessity of defining the parameters of an asserted right to determine if it is being exercised and whether a particular activity falls within its scope. The Magistrate had found that while the appellants had satisfied the evidentiary onus in respect of certain elements of the defence, this was at a general level without identifying the specific content of traditional laws and customs or the communal, group, or individual rights and interests involved.

The Full Court allowed the appeals, quashed the convictions, and set aside the sentences imposed by the Magistrate. The court found that the Magistrate had erred in concluding that the appellants had not discharged the evidentiary burden of raising the native title defence. The Full Court held that there was sufficient credible evidence to establish a reasonable possibility that the appellants and their descendants had continued to observe the relevant traditional laws and customs of the Narungga people, and that these customs extended to the right to fish, including the taking of abalone, which was exercised by the Narungga community prior to British sovereignty.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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