Wanganeen v Dietman; Shaw v Dietman (No 2) - [2021] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WANGANEEN v DIETMAN; SHAW v DIETMAN (No 2)
[2021] SASCFC 31
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)
30 July 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
PRIMARY INDUSTRY - FISH - OFFENCES - PENALTY
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING OR POSSESSING UNDER PRESCRIBED WEIGHT OR SIZE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES - CONDITIONS
The Court previously allowed the appeal by Wanganeen and Humes, set aside their convictions, entered an acquittal on count 3 and remitted counts 1, 2 and 4 to the Magistrates Court for a fresh trial. The appeal by Shaw against his convictions on counts 1 and 2 was allowed and acquittals substituted and his appeal against his conviction on count 3 was dismissed: Wanganeen v Dietman; Shaw v Dietman [2021] SASCFC 25.
The Court subsequently heard submissions on resentencing Shaw and in relation to costs.
Held (by the Court):
1The Magistrate’s order that Shaw be discharged on entering into the good behaviour bond, prohibition order and forfeiture order remain appropriate and should be affirmed (at [19], [30] and [31]).
2The additional penalty and the costs orders made by the Magistrate in relation to Shaw should be set aside (at [28]).
3Orders by consent that the respondent pay Shaw’s costs of the prosecution in the Magistrates Court and Shaw’s costs of the appeal (at [32]).
4There is no good reason not to order that the respondent pay the costs of appeal of Wanganeen and Humes without reduction on account of mixed success (at [40]).
5The costs of the prosecution of Wanganeen and Humes in the Magistrates Court should be reserved to the Magistrates Court (at [41]).
6Orders made to the above effect (at [42] and [43]).

Sentencing Act 2017 (SA) ss 25, 26, 97, 114, 120; Fisheries Management Act 2007 (SA) ss 72, 74, 90, 100, 110; Native Title Act 1993 (Cth) s 211, referred to.

WANGANEEN v DIETMAN; SHAW v DIETMAN (No 2)
[2021] SASCFC 31

Full Court: Kourakis CJ, Kelly, Blue, Stanley and Doyle JJ

THE COURT: This Court previously allowed the appeal by appellants Simon Wanganeen and Henry Humes, set aside their convictions, entered an acquittal on count 3 and remitted counts 1, 2 and 4 to the Magistrates Court for a fresh trial.[1] The appeal by appellant John Shaw against his convictions on counts 1 and 2 was allowed and acquittals substituted and his appeal against his conviction on count 3 (being in joint possession or control of a prescribed class of aquatic resource[2]) was dismissed.[3]
[1]     Wanganeen v Dietman; Shaw v Dietman [2021] SASCFC 25 at [246]-[247].
[2]     Fisheries Management Act 2007 (SA) section 72(2)(c).
[3]     Wanganeen v Dietman; Shaw v Dietman [2021] SASCFC 25 at [248].
As a result of Shaw’s partial success…

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 31
Decision Date: 30 July 2021

CaseChat Overview and Summary

This matter concerned appeals to the Full Court of the Supreme Court of South Australia following convictions in the Magistrates Court. The appeals were brought by Wanganeen and Humes, and by Shaw, against convictions for offences related to the taking or possession of fish under a prescribed weight or size. The Court had previously allowed the appeals of Wanganeen and Humes, setting aside their convictions and remitting some counts for a fresh trial. Shaw's appeal against two convictions was allowed with acquittals substituted, while his appeal against a third conviction was dismissed. The Full Court subsequently considered submissions on resentencing Shaw and on costs.

The primary legal issues before the Full Court were the appropriate sentencing orders for Shaw, given the partial success of his appeal, and the allocation of costs for both Shaw's appeal and the appeals of Wanganeen and Humes, considering the mixed outcomes. Specifically, the Court had to determine whether the Magistrate's sentencing orders for Shaw, including a good behaviour bond, prohibition order, and forfeiture order, remained appropriate, and whether an additional penalty and costs orders made by the Magistrate should be set aside. The Court also had to decide on the costs of the prosecution in the Magistrates Court and the costs of the appeals for all parties.

The Full Court affirmed the Magistrate's order for Shaw's discharge upon entering into a good behaviour bond, prohibition order, and forfeiture order, finding these to be appropriate. However, the Court set aside the additional penalty and costs orders made by the Magistrate in relation to Shaw. Regarding costs, the Court ordered that the respondent pay Shaw's costs of the prosecution in the Magistrates Court and Shaw's costs of the appeal. For Wanganeen and Humes, the Court ordered that the respondent pay their costs of appeal without reduction for mixed success, and that the costs of the prosecution in the Magistrates Court be reserved to that court for determination.

Orders

Orders of the court

The Court previously allowed the appeal by Wanganeen and Humes, set aside their convictions, entered an acquittal on count 3 and remitted counts 1, 2 and 4 to the Magistrates Court for a fresh trial. The appeal by Shaw against his convictions on counts 1 and 2 was allowed and acquittals substituted and his appeal against his conviction on count 3 was dismissed: Wanganeen v Dietman; Shaw v Dietman [2021] SASCFC 25.

The Court subsequently heard submissions on resentencing Shaw and in relation to costs.

Held (by the Court):

1 The Magistrate’s order that Shaw be discharged on entering into the good behaviour bond, prohibition order and forfeiture order remain appropriate and should be affirmed (at [19], [30] and [31]).

2 The additional penalty and the costs orders made by the Magistrate in relation to Shaw should be set aside (at [28]).

3 Orders by consent that the respondent pay Shaw’s costs of the prosecution in the Magistrates Court and Shaw’s costs of the appeal (at [32]).

4 There is no good reason not to order that the respondent pay the costs of appeal of Wanganeen and Humes without reduction on account of mixed success (at [40]).

5 The costs of the prosecution of Wanganeen and Humes in the Magistrates Court should be reserved to the Magistrates Court (at [41]).

6 Orders made to the above effect (at [42] and [43]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In relation to the costs of the prosecution in the Magistrates Court, this Court has remitted the matter to the Magistrates Court for a fresh trial. The parties rightly accept that the appropriate order is that the costs of the prosecution in the Magistrates Court be reserved to the Magistrates Court.Conclusion We make the following further orders for the disposition of the appeal by Shaw:1We make the following orders in relation to the sentencing orders made by the Magistrate:(a)the additional penalty and costs orders made by the Magistrate are set aside but the Magistrate’s order that Shaw be discharged on entering into the good behaviour bond, prohibition order and forfeiture order are not set aside;(b)the respondent pay Shaw’s costs of the prosecution in the Magistrates Court to be adjudicated if not agreed.2The respondent pay Shaw’s costs of the appeal to be adjudicated if not agreed. We make the following further order for the disposition of the appeal by Wanganeen and Humes:1The respondent pay Wanganeen’s and Humes’s costs of the appeal to be adjudicated if not agreed.

Ratio Decidendi

Legal Principle Established

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