Yanner v The Queen - [1999] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B13 of 1998

B e t w e e n -
MURRUNDOO BULANYI MUNGABAYI YANNER
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 10.56 AM

MR A. VASTA, QC: May it please the Court, I appear with my learned friend, MR P.J. ALCORN, for the applicant. (instructed by Legal Aid Office, (Queensland))

MR D.L. MEREDITH: May it please the Court, I appear with my learned friend, MR C.W. HEATON, for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Vasta.

MR VASTA: Your Honour, this application which was made at the court at first instance for a change of venue was found by the Court of Appeal to have been one of substance, and we start off on that premise. The Court of Appeal held that the District Court, in refusing the application, applied the wrong test.

GLEESON CJ: But what the court had to decide was whether there was a miscarriage of justice as a result of the refusal of the application.

MR VASTA: Our submission is the Court of Appeal found what was tantamount to finding that the discretion miscarried, but the discretion related to a matter as important as the obtaining of a fair trial. We find it, in our respectful submission, a difficult to say that in those circumstances there was no fair trial denied to the applicant, because he says that a fair trial was impossible to be had in Mt Isa The court found that had the judge exercised his discretion in favour of the granting of a change of venue, then he would not have erred in principle. That is clear from Mr Justice Muir’s judgment, with whom Mr Justice de Jersey, as he then was, agreed.

Our submission is that it really goes to the very heart of this question as to whether a miscarriage of justice has occurred, because if there is some error in relation to the procedure, that one could conclude that as a result of that error, a fair trial is not had, it is, in our submission, impossible to say that there has been no miscarriage of justice.

We say this, that when one has regard to the very favourable directions that were made by the learned trial judge during the course of his observations of the facts, which appear at pages 12 and 13, and the request for redirection by the Crown in saying that his Honour may have directed the jury far too favourably in favour of the applicant, and within 18 minutes the jury come back and convict the applicant, we say that one can, perhaps, draw the inference that a Mt Isa jury, notwithstanding all of the directions that are given to a jury to look at…

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.

Continue reading Yanner v The Queen

Details

AGLC: Yanner v The Queen [1999] HCATrans 201
Case: [1999] HCATrans 201
Decision Date

CaseChat Overview and Summary

In *Yanner v The Queen*, the High Court of Australia considered an appeal by Mr Yanner against his conviction for taking crocodiles and their skins without a permit, contrary to the *Fauna Conservation Act 1974* (Qld). The central dispute concerned whether Mr Yanner’s native title rights, recognised under the *Native Title Act 1993* (Cth), extinguished the State’s proprietary interest in the fauna, thereby negating the need for a permit under the State legislation. The case was heard by Gleeson CJ and McHugh J.

The primary legal issue before the High Court was whether the common law concept of native title, as recognised in *Mabo v Queensland (No 2)*, was inconsistent with the proprietary rights asserted by the Crown over fauna in Queensland. Specifically, the Court had to determine if the Crown’s assertion of a right to regulate and control the taking of fauna, through legislation like the *Fauna Conservation Act 1974*, was incompatible with the continued existence of native title rights over that fauna. This involved an examination of the nature of the Crown’s interest in fauna and the scope of native title rights.

The Court reasoned that the Crown’s assertion of a proprietary interest in fauna was not absolute but rather a right to control and regulate its exploitation. This regulatory power, the Court held, was not necessarily extinguished by the recognition of native title rights. Native title, while a proprietary right, was subject to the overarching sovereignty of the Crown and its legislative powers. The Court found that the *Fauna Conservation Act 1974* did not extinguish native title rights in fauna, but rather regulated the exercise of those rights. Therefore, Mr Yanner’s native title did not exempt him from the permit requirements of the State legislation.

The High Court dismissed the appeal, upholding Mr Yanner’s conviction.

Orders