Carriage v NSW Department of Planning, Industry & Environment

District Court of NSW|2022-03-10|Before: Mr J, Mr P

Principal judgment Parties: John Henry Junior Carriage (Appellant) NSW Department of Planning, Industry & Environment (Respondent) Representation: Counsel: Mr J Waters SC (Appellant) Mr P Aitken (Respondent) Solicitors: Ms Keely Boom (Appellant) Ms Avani Khandhar (Respondent) File Number(s): 2019/00399699 2019/00399709 2019/00399724 2019/00399732 2019/00399735 2019/00399739

Introduction

The Appellant (App), Mr Carriage, appeals his convictions in the Local Court for 6 offences under the Fisheries Management Act (the FMA) and under the Fisheries Management (General) Regulation (the FMGR).
The particulars of the charges of which the App was convicted in the Local Court are as follows:
Charge 1 (CAN 1): That on 29 December 2017 at Oaky Beach in South Durras he jointly possessed prohibited sized fish, namely 47 Haliotis Rubra, commonly known as Abalone, having shells less than 11.7cm along the longest axis, in circumstances of aggravation, being that abalone is a priority species of fish and that the quantity of prohibited size abalone possess was greater than 10, being the commercial quantity. That is an offence under s16(2) of the FMA and clause 11 of the FMGR.
Charge 2 (CAN 2): That on the same date and place as particularised in charge 1, the App jointly possessed 161 Abalone, in circumstances of aggravation, those circumstances being the same as those particularised in charge 1.

The nature of a conviction appeal from the Local Court to the District Court

An appeal to this Court against a conviction in the Local Court is a rehearing under s.18 of the Crimes (Appeal and Review) Act. A s 18(1) appeal is not an appeal de novo. The judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court": While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal.
The powers of the District Court on a s 18(1) rehearing are exercisable where the App demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand. Demonstration of error in relation to such an appeal means no more than satisfying a District Court judge that the magistrate should not have been satisfied beyond reasonable doubt as to an App's guilt. This approach to such appeals is consistent with the recent decisions in Lunney V DPP [2021] NSWCA 186 and in McNab v DPP [2021] NSWCA 298.

Evidence called in the Prosecution Case

I turn then to review the evidence adduced in the Local Court, there having been no application to call fresh evidence on the Appeal.

A chronology of the observations of the Fisheries officers derived from their evidence

On Friday 29 December 2017, Fisheries Officers Owen McTavish, Ben Donaldson, Sampson Hollywood, Paul Frank and Liz Alldritt were conducting a patrol of the area and waters around Oaky Beach, South Durras NSW. Each fisheries officer with, the exception of Hollywood, was wearing a uniform identifying them as a fisheries officer.
Oaky Beach is located in the Murramarang National Park, approximately 10 kilometres north east of Batemans Bay. The waters adjacent to Oaky Beach are waters to which the FMA applies and are part of the North Head Sanctuary Zone of the Batemans Bay Marine Park. There is a car park at each end of Oaky Beach: the North Oaky Beach car park and the South Oaky Beach car park. One track heads south down to Oaky Beach and the other track heads in an easterly direction over the headland between Little Oaky Beach and Oaky Beach. The Oaky Beach track also connects with the South Oaky Beach carpark.

Observations of three divers and a boy

At about 2pm on 29 December 2017 McTavish with Donaldson drove to Oaky Beach. Donaldson saw 3 divers in the waters adjacent to the northern headland of Oaky Beach. One diver was wearing a black wetsuit with orange and black fins; another was wearing a green and black hood and orange thins and the third was wearing a black wetsuit and black fins. McTavish considered that all 3 divers were "duck diving in a manner consistent with the collection of Abalone or Rock Lobster". McTavish estimated that the divers were 10 to 20ms apart. He described the 3 divers as duck diving along the shallow reef area close to the shoreline. He did not at that time see any lobsters or abalone. Those observations were essentially confirmed in the evidence of Donaldson.
At about 2.40 pm Donaldson met with McTavish, Hollywood, Frank and Alldritt in the carpark at the northern end of Oaky Beach. Donaldson walked along the top of the headland at the northern end of Oaky Beach and observed on a rock ledge a full length black wetsuit, a full length blue wet suit, a short length black wetsuit, a bright orange dive float, a spear gun, a green backpack and a purple back pack.
Officer Hollywood's evidence was that upon arrival at the Sanctuary Zone on the cliff top, north of Oaky Beach, he saw a boy of Aboriginal appearance below him on the rock platform. Locations he described in his evidence can be seen by cross referencing his statement and oral evidence to a map which was attached to his first statement and labelled Annexure B. He described the boy carrying a fish and fishing rod towards a rock pool where he washed the fish. Hollywood also said he could see several backpacks and other fishing gear, including spearguns and an orange float on the rocks nearby.
Fisheries Officer Paul Frank's statement was tendered and he gave oral evidence in chief and was XXMed. In his oral evidence the witness said he did not see any cars in the carpark, or any other people there when he arrived there that day.
Frank states that in the company of officer Alldritt he headed down the track to North Oaky Beach. From the beach he said he could see 3 divers in the water. He described in his statement those divers diving to the south of the headland that marks the boundary of the North Head Sanctuary Zone, and marked the relevant locations on a map annexed to his statement. He described each diver diving in a manner consistent with Abalone collection. In his oral evidence he explained what he meant by that, being duck diving, taking a breath and going under water. His evidence was he saw no other people on the track or in the water at that time, and that he had the divers in his sight for about an hour.
The witness described one diver wearing black fins, the second wearing orange and blue bodyboard style fins and the third wearing orange and black dive fins. At one stage he says he saw the 3 divers swim back in a northerly direction towards the headland and behind rocky outcrops out of his line of sight.
At about 2.45pm McTavish, Donaldson and Hollywood walked down the track leading to Little Oaky Beach. At 2.50 pm McTavish saw the Appellant's son on the rock shelf below the Northern Head Sanctuary Zone sign located on the northern headland of Oaky Beach. He observed the Appellant's son clean a fish in a rockpool and there was an array of dive gear and bags adjacent to him, including an orange dive float and a spear gun.
At 2.45pm Hollywood's evidence was that as he walked south towards Oaky Beach, he surveyed the water and rock platform and saw no persons until he was looking into the bay in front of Oaky Beach. At that point he said that he saw 2 divers in the water about 100 metres away. In his oral evidence in chief the witness described the divers as diving in a manner consistent with diving for abalone or rock lobster, being that they were making frequent duck dives over the shallow inshore reef.
At about 2.55pm McTavish saw another diver in the water on the southern side of the northern headland of Oaky Beach, who was about 20 metres away. That diver was wearing a green and black hood, which McTavish recognised as the one he had seen earlier, when he had been looking from south Oaky Beach. McTavish said he observed that diver a short time later leave the water carrying a green mesh bag. He observed what was in that bag to have the dark maroon/brown colour and circular shape of Abalone, before the diver went out of his view. He watched that diver for about 3 minutes.
McTavish changed location so that he could observe the dive gear that was on the rock shelf below the Sanctuary Zone sign. He saw two black wet suits and one blue wetsuit, an orange dive float, a set of black fins, a spear gun, one purple back pack and one green back pack.
Donaldson described moving to a south facing position on top of the headland. From that position he could see the Sanctuary Zone sign. Using his binoculars he saw 3 divers in the water, all three diving south west of the Sanctuary Zone sign. He described the divers constantly duck diving over the shallow inshore reef in a manner consistent with taking Abalone. In his oral evidence in chief the witness said that they were at times between 5, 10 and 15 meters apart, but that he did not recall seeing them adjacent to each other. He also said he saw no other people in that location. Donaldson described the first diver as wearing a light blue dive hood, a full length black wetsuit, a black snorkel and orange tipped fins. He took a photograph of that diver which is in evidence. The second diver was described as wearing a blue full length wetsuit, a blue rimmed dive mask, a blue snorkel and black fins. The third diver was described as wearing a short black wetsuit, a black dive hood, a black snorkel and orange tipped fins. A photograph was taken of diver 1 and 2 and they appear in the photograph to be relatively close together in the water. The witness described the 3 divers at 2.57pm swimming to the rocky shore and leaving the water. In XXM he was asked if he could say if the Ap was one of the 3 divers shown in the video made of that part of the incident and said he couldn't be sure.
Donaldson described diver 1 as leaving the water carrying a green mesh catch bag full of Abalone. He described that diver as carrying an Abalone iron with a blade about 20 cm long with a black handle.
Donaldson described diver 2 leaving the water carrying a black mesh catch bag full of abalone. He also described diver 3 leaving the water carrying a black mesh catch bag full of whole Abalone, which he again videoed. All 3 divers were said to walk towards the base of the headland out of the witness's sight.
Donaldson described moving to a different location from where he could see towards the base of the cliff where the 3 divers had walked to. He said he saw Abalone shells flying through the air from the base of the headland towards the water. He described some landing in the water and some landing on the rock platform adjacent to the water, stating that a shell was "flying every second or so", and that this continued for about 5 minutes. In his oral evidence in chief the witness said that he was approximately 20 meters from where that was happening.
Donaldson said he again moved location to where he could see the base of the cliff. He described 4 men huddled in a large crack in the rock platform. He recognised one of those men to be the Ap whom he had dealt with previously. In his oral evidence in chief he said that the shucking activity had ceased at that point.
Hollywood states that about 3 pm he saw 3 men approach the boy on the rock platform from the direction of Oaky Beach, all of whom wore and carried dive gear. In his oral evidence he described the dive gear as including dark wetsuits, being blue and black, masks, snorkels and some fins. He described the group drying off and packing up their gear, before walking in close to the cliff below him where he lost sight of them. The witness described hearing for several minutes a strange "clack" sound, and then he saw an Abalone shell land with a "clack" on the rock, and that he then saw several more shells hit the rock, and took a photograph. He also videoed several Abalone shells flying through the air onto the rock platform and into the water. In his oral evidence he said he observed the flying shells for about 5 minutes.
Hollywood described one of the men he had seen wearing a purple shirt and a coloured hat, and at 3.08pm filmed that person throwing Abalone shells into the water in a motion like throwing a frisbee. He states that he then photographed the boy picking up the Abalone shells and throwing them into the water, and also videoed what was then occurring.
Hollywood states that at 3.20pm the group, by which he meant all 4 persons, walked back to where their bags and gear were on the rocks. He describes two of the men as wearing only dark shorts and not shirts and the third man wearing dark shorts and a t-shirt with different coloured panels. The witness states that the male with the multi-coloured t-shirt walked out wide to the east of the rock platform and spent several minutes looking up high on the cliff. He then states that that male and the boy picked up backpacks and walked north out of his view, along the rock platform towards the track to the carpark where he and the other officers had parked their cars. Other evidence establishes that the boy referred to in Hollywood's evidence was the Appellant's son.
McTavish and Donaldson walked back to the track that led up to the Oaky Beach carpark and took up surveillance along the track. At about 3.30pm McTavish saw the App's son walk past him towards the carpark. The Ap's son was carrying two backpacks, a spear gun and an orange dive float. This observation was essentially confirmed in Donaldson's evidence, who said that the orange float was similar to the one he had seen earlier on the rocks.
About 3.45pm McTavish saw an adult male of Aboriginal appearance, with a beard and shirtless walk past him. This evidence was essentially confirmed in Donaldson's evidence, Donaldson describing that man wearing a backpack with black fins extending from the top of it, and said the fins appeared to be similar to the ones he had earlier seen the divers using. In ReXM, McTavish was asked without objection, why it was he did not speak to the Ap's son and the other man who walked past him on the track before speaking with the Ap. The witness responded: "In our experience, it's typical of these types of illegal diving operations. It's typical to in a group like that, for individuals to walk out in a staggered fashion, for want of a better word, to flush out Fisheries' officers, to act as decoys. And if we're looking at making sure that we secure evidence, then we would generally wait until the last group of divers or the last person left the area before approaching anyone, cause there's a risk of things being thrown back into the water, evidence being discarded and that's in my experience, that's why we wouldn't approach someone in that situation." Donaldson gave similar evidence as to why the Appellant's son and the other man were not stopped at that point in time.
Hollywood described the two shirtless males, the remaining males on the rock platform, moving out of his view back against the cliff near where they had shucked the Abalone. The witness states he was about 70ms away from the location where this was occurring. He described one of those men as holding a brown hessian bag that appeared to contain something. The other man the witness described as holding a purple bag and a purple shirt.
Hollywood states he then returned to the location directly above the men. He says that several minutes later he saw the two men below him move about 10 metres south around the corner from what he termed "their shucking location", to an area where there was an undercut cave like area in the cliff. He described the man with the hessian bag looking up towards him and he recognised the man to be the App, whom he says he has seen many times over the years. That recognition evidence was not put in issue in the XXM of the witness. The witness refers to hearing those two men talking but states that he could not hear what they were saying.
Hollywood states that a short time later he watched the App and the other man walk back to the area where their gear had been, before continuing north along the rock platform towards Little Oaky and the track to the car park. He described the App wearing a green backpack.

Interactions with the Appellant and another man

At about 3.50 pm McTavish and Donaldson walked down on to the rock platform adjacent to Little Oaky Beach. At 3.55pm McTavish recorded what was occurring on his mobile phone. That recording is in evidence as is a transcript. McTavish a short time later saw two men appear from behind the rocky point at the northern end of Oaky Beach and walk north towards Donaldson and himself. McTavish recognised one of those men to be the App but did not recognise the other. The second male was described by McTavish as being a cleanshaven adult of Aboriginal appearance. The App was carrying a green and black backpack, and the other man was carrying a purple back pack.
At 4pm Hollywood states that he walked towards the walking track from the beach and saw the App and the other man interact with McTavish and Donaldson.
Donaldson spoke to the App about wanting to do "a quick inspection", and the App queried him about the need for a warrant. According to McTavish's statement, Donaldson said: "Just letting you know if you fail to stop and let us do an inspection of your fishing gear and equipment it is an offence. Do you understand that?" The App is recorded as responding: "It's not an offence mate", and at one point when asked to allow the officers to inspect his bag said, "I'll do it when I get to the fucken top…….I'm not fucking undoing my bag" , and he and the other man did not comply with the officer's request.
According to McTavish's statement, Donaldson then said: "Guys can you please state your full names and addresses right now" to which the App is recorded as saying; "No. I have done nothing wrong". Donaldson is then recorded as saying: "If you fail to state your name and address I need to let you know you are committing an offence", to which the App is recorded as saying, "I am on my traditional country. I've done nothing wrong so I won't state my name and address". Donaldson is recorded as then saying, "You are committing an offence right now by...", and the App is recorded as saying, "I am not. I'm Aboriginal. I own this land. You don't own this land you white motherfuckers".
Donaldson is said to have responded, "We understand that you are Aboriginal and we respect that but we also have a job to do", to which the App is recorded as saying, "You don't fucking respect that. Fuck off. You fucking piece of shit, fucking scumbags. Little scabs that's what youse are". McTavish states that the App and the other male continued to walk by and that he asked the unknown male to stop so he could search his bag on several occasions and he refused to do so. The witness describes the App and the unknown man splitting up, with Donaldson and Hollywood following the App and McTavish the unknown man.
According to Donaldson's evidence, around 100ms south of Little Oaky he and McTavish were approached by the App and another man he did not know. He described the App as wearing a green backpack, being one of the backpacks he had seen earlier on the rock platform. He described the other man as wearing a purple backpack that he had seen earlier. Donaldson described approaching both men and engaging in conversation with them. His detail of the conversation does not significantly differ to that given by McTavish and therefore there is no need to repeat it here. Much of it is contained in the recordings that are in evidence, and the content of the conversation was not significantly put in contest at the Local Court hearing. In XXM the witness agreed that the App did not threaten him but said he found some of the insults the App made to be slightly intimidating and abusive in nature.
McTavish states that after about 5 minutes the unknown man stopped and allowed him to search his bag. In his oral evidence the witness said that he observed two live green lobsters in that bag. McTavish's statement records they were then joined by the App and Donaldson and Hollywood. The witness states he then continued to follow the App and the unknown male to the car park and observed them to leave the area and walk towards the main road. In his oral evidence in chief, McTavish said he saw no other vehicles, apart from Fisheries vehicles in the car park.
Donaldson details that he and Hollywood followed the App as he walked through the bush while McTavish followed the other man. Donaldson sets out in his first statement that Hollywood again told the App to stop so they could examine his bag, and the App did not stop. After a few minutes, according to Donaldson's statement, the App did stop and dropped the green backpack on the ground. Donaldson states that he searched that backpack and found a black Abalone iron which he seized and which he states was the same size, shape and colour as the Abalone iron he had seen diver 1 holding as he left the water earlier. The backpack also contained several black plastic bags. In his oral evidence in chief the witness said he did not see any other people while walking back to the carpark.
In his oral evidence, Donaldson said he did know the App's name when he first spoke to him but not his address. That he always asks people their full name and address. In XXM he said he asked a person's name as routine but agreed he did not need to do so when he already knew a person's name.
In XXM Donaldson agreed that he had said to the App that, "It's fine to go to the top" at one point, but said he was not giving him the option of having his bag searched at the top as he had told the Ap that if he did not allow his bag to be searched when first spoken to, he would be committing an offence.
Donaldson details having heard something from McTavish, running to where he was and states that he saw McTavish searching the purple backpack of the other man which contained two rock lobsters which were also seized. He describes the App and that other man then leaving the area on foot. That other man was not identified by the Fisheries officers during their investigation.
Hollywood described his and Donaldson's interaction with the App and detailed his demand to the App to inspect his gear and catch. That when the App failed to allow this, he told the App he was obstructing him in the course of his duties. He described the App stopping and opening his bag to allow it to be inspected, and it was found to contain an Abalone iron. In his statement Hollywood details asking the App for his name and address, with the responses from the App being, "You fuckin know who I am. I'm not telling you anything".
In XXM Hollywood agreed that it was within minutes of being requested to allow his bag to be searched, that the App permitted that to occur. He did not accept that it was reasonable for the App to suggest that he would allow that to occur at the top of the track. The witness accepted that he knew the name of the App from the moment he saw him.

What was found on the rock platform

At about 4pm officer Frank, not having seen the divers for some time, headed back to the carpark in the company of Alldritt. In his oral evidence the witness said he saw two people setting up a campsite on his way back to the carpark. Those persons were not of Aboriginal appearance, and he did not see any flippers or wetsuits.
Frank says he then headed down the track to Little Oaky to the area where the Abalone shells and gut had been located on the rock platform by the other officers. He then states that a short time later Hollywood went around the rocks and returned with two hessian bags containing freshly shucked abalone meats. In his oral evidence he said that he had "a general look around the vicinity for anything that my have been connected to the events that day", that he looked in rock pools and under rocks. In XXm the witness said that he did not get into the water at all in doing so, although recalled that Hollywood had. In XXm his recollection was that he did not think he continued searching once the hessian bags were found. His evidence was he saw no other persons on the rock platform at any point that day.
McTavish states that with Donaldson, Frank and Alldritt he walked down to the rock shelf where he had seen the divers. At that location he says he saw several Abalone shells that were very fresh, did not smell and some still had gut and meat attached. He described those shells as being scattered about the rock shelf, in cracks, crevices and rock pools. He also described seeing two large piles of fresh Abalone gut in separate locations, one on the rock shelf and one in a small crack that led into the water. Photographs were taken and they are in evidence. In his oral evidence in chief the witness said that the dive gear he had previously observed was no longer there. He also said that the gut and meat was still wet.
According to McTavish's statement, a short time later he heard Donaldson say, "We've found them". The witness states he then went to where Hollywood was in a small cave on the southern side of the northern headland of Oaky Beach. Hollywood is said to have pointed to a pile of neatly stacked rocks, which are shown in photograph 11 of the photographs that are in evidence. McTavish describes looking amongst those rocks and seeing a hessian sack. He then removed the rocks and saw two hessian sacks. The first sack was said to contain a large quantity of Abalone meats and another hessian sack. The witness states that he found inside the second hessian sack a large quantity of Abalone meats. In his oral evidence in chief McTavish said that the hessian sacks were in a cave, being a small rocky undercut in the cliff. He described the Abalone meat that was found as being fresh and wet.
Hollywood gave evidence that on the rock platform he located a number of Abalone shells, which he considered had been recently shucked given the Abalone blood still in the shell as well as the residual meat attached to the shell. He describes locating two piles of Abalone gut in the location that he says the App and the others had been when he saw the man with the purple hat and the boy throwing the shells into the water. The witness describes looking into several of the rock pools immediately adjacent to the shells and Abalone gut and saw a number of Abalone shells which he retrieved. He states that he found those shells also to have meat and gut still attached to them, and that they smelt fresh.
Hollywood says that he, with McTavish, walked around the corner to the south where he had observed the App and the man with the purple bag, just before they had left to walk north. He states that in the location in a cave like structure, under the cliff, he saw a pile of rocks that looked "far too neat". That he then observed McTavish move the rocks and find the two hessian bags as described in McTavish's evidence that I reviewed earlier. In XXM he agreed he had not seen anyone place those rocks there, nor had he actually seen anyone shuck abalone that day. He agreed that it was about 21 minutes from when he had left where the App was to when the pile of rocks was located. His evidence was that after that was found the officers may have spent another 20 minutes searching for further evidence. In XXM he said in terms of searching below the water level, some of the officers stepped into rock pools, and accepted he did not know if there was another "bag of catch" in the water near to where he was searching.
In his oral evidence in chief, Hollywood said he saw no other people in the area, or in the water near that area that he was observing, apart from the 4 persons he made observations of and his fellow Fisheries officers. This evidence was the subject of XXM, it being put to the witness that there were more than 4 people on the rock platform that day, to which he responded that he didn't think it was possible that there was more than 4 people there at that time. He agreed that he could not see the whole of the rock platform at any given time, relying on the fact that there were a number of Fisheries officers making observations at that time. The witness agreed that the area was under surveillance by the Fisheries officers during the period 2 pm and 4 pm, and that it was sometime later that he and other officers went on to the rock platform to search.
McTavish described Donaldson laying out 28 Abalone shells and stating, "These shells are all legal size". They were photographed and returned to the water. The witness states that he saw Donaldson retrieve 47 prohibited size Abalone shells from around the rock shelf and place them in the second sack. McTavish states that he and Donaldson then returned to Batemans Bay Fisheries Boatshed, where he laid out, counted, measured and photographed the seized Abalone shells and meats. He records in his statement that there were 108 Abalone meats in the first sack, and 53 Abalone meats in the second sack. It is these abalone meats which are the basis of the second and third of the charges. He also records that he measured 47 prohibited seized Abalone shells using Vernier calipers and found them to range in size from 8.9cm to 11.5 cm. It is these 47 Abalone shells containing fresh abalone meat which are the basis of the third charge.
In McTavish's oral evidence in chief, he said he saw no other persons on the track to the beach apart from the persons he described in his statement, nor did he see he any other persons on the rock platform or in the water adjacent to Little Oaky Beach. In XXM the witness's ability to see the whole of the rock platform when he made his various observations was explored with him. He agreed that he never had a clear view of all of the rock platform, and it was possible that half a dozen people may have been out of his sight but on the platform at that time. The witness agreed that 29 December is the peak holiday season on the south coast but maintained that at the relevant time that he was making observations at Oaky Beach, there was not a lot of people in the area. The witness also agreed that the rock platform concerned was accessible from two points. He agreed essentially in XXM that he was monitoring access from the track down to Little Oaky Beach and not from the beach itself.
After detailing further interactions with the App and the other man with the purple bag, the witness states that he then walked to the rock platform where he had seen Abalone shells being thrown.
Donaldson describes himself together with the other Fisheries officers walking to the location on the rock ledge where he had observed what he termed "shucking activity" taking place. At the crack in the rocks where he says he saw the App and the other 3 men, he states that he saw freshly shucked Abalone shells scattered randomly in the crack, over the rock platform and in the adjacent water. Photographs of what was observed were taken and are in evidence. The witness describes seeing a pile of fresh Abalone gut at the base of the crack which was photographed. He details his examination of the Abalone shells that were found and noted that they all had their meats removed and that most of the gut was left intact. There was no challenge to his description and opinion about the state of the Abalone meat and shells.
According to Donaldson's statement, he then measured the shells and sorted the prohibited sized Abalone shells from those that were of a permitted size. In his first statement he details seeing Hollywood searching in an area amongst the boulders at the base of the cliff, adjacent to the crack where he had seen the shells being thrown. He refers to Hollywood saying, "I found them." He describes Hollywood and McTavish carrying two full brown hessian bags and that they placed the bags beside the two piles of freshly shucked Abalone meats. He expresses the opinion that the meats smelled fresh which indicated that the Abalone had been shucked no more than a few hours previously. Photographs were taken and they are in evidence.
Donaldson states that he seized the prohibited sized Abalone shells and the two brown hessian bags containing the Abalone meats. Upon further examination he states that he counted 161 Abalone meats and 47 prohibited size shucked Abalone shells. On the 23 Jan 2018 the preserved meats were weighed and found to be 9.76kgs.
In XXM the Donaldson maintained that there was only ever 4 people that he saw, and said the only person he knew was the App. He agreed that it was possible that there could have been more than 4 people on the rock platform, because at various times he did not have a full view of the rock platform. He also agreed that there were two ways of accessing the rock platform. While accepting that there were a lot of people in the "locality of all the beaches within easy reach of Bateman's Bay" that day, he did not accept that the car parks at Oaky Beach were full.
In XXM Donaldson's evidence was that after finding the hessian bags referred to in his evidence, and the abalone shells, he and the other officers did not conduct a thorough search of the area to see if there might be other caches of Abalone or lobster or equipment.
Further statements from other Fishery officers were tendered, but they did not give oral evidence, and they were not required for XXM. There was evidence in those statements that at the relevant time of the events the subject of the proceedings, the average price per kilogram for live blacklip Abalone was $44. There was also adduced evidence suggesting that during the month of December 2017 the price of shucked blacklip abalone meat was $110 per kilo and live in shell abalone was $55 per kilo.

Evidence called in the App's case in the Local Court

The App gave evidence in the Local Court. The App's evidence essentially dealt with two main topics; the events and circumstances surrounding what occurred on 29 December 2017 and his understanding of his traditional rights to fish in the waters where he fished on that day. I will firstly deal with the evidence the App gave about the events and circumstances surrounding 29 December 2017, and then I will outline the evidence he gave as to his understanding of his traditional rights to fish in the waters where he fished that day.
The App gave evidence that he travelled to Oaky Beach with his son, his cousin Adrian and his cousin Kane in the one car and travelled to the north car park and parked. His evidence was that the other carpark towards the south, which concerned a camping ground, was full. He described walking down the track to Little Oaky Beach, being the same track on which he met the Fisheries Officers later that day. His evidence was that they proceeded to "one of our spots where we dive a lot, and it's good for the lobsters and mutton fish". There is no issue that a reference "mutton fish" in the evidence is a reference to Abalone.
The App said that they all had a swim in the bay, and that all four went diving for lobster and mutton fish, and he agreed that he had caught some. His evidence was that when he caught mutton fish he put them into a brown hessian bag which he had with him in the water. The App's evidence was that his son was beside him, and that they fished in the deeper water, and his cousins fished closer in. He described his cousin Adrian being about 5 metres from himself. His evidence was that nothing Adrian caught went into his bag, and nothing he caught went into Adrian's bag, and that he saw Adrian get out of the water with his own bag.
The App described that when he got out of the water, he cleaned the fish, by which he meant he got the mutton fish out of their shells. He described the other men doing the same a few meters from him but said he did not count the number of fish any of them had. The App's evidence was that they all had food and drink and that he then went for a dive on the south side of the bay which was closer to Oaky Beach as did his son and his cousins. He described again gathering mutton fish, and that while doing so he saw a reflection on the cliff which he took to be the binoculars of a Fisheries officer and continued to dive.
The App's evidence was that while he and his son were still in the water, he saw his cousin Kane get out of the water and then Adrian got out of the water. He described his son swimming towards where their gear was and the App headed towards the rock shelf or platform. He described climbing up to where Adrian and Kane were and said that they talked about the Fisheries officers watching them from on top of the cliff. They each, according to the Ap's evidence, began to clean their respective mutton fish.
The App's evidence about the bag or bags he had while fishing was a little confusing. As I understand his evidence in chief, after his first dive he left a hessian bag a little below the water near where the gear he and the others had with them was located. He said he thought he had 4 hessian bags with him in total and that when he went on the second dive he had one of those bags with him. His evidence was that during that second dive he put mutton fish into that bag but could not recall how many.
The App said that he told his son to get what he had caught on his first dive and he tipped that catch into the second bag, so that he had all of the mutton fish he caught in the one bag. That he then jumped into the water and swam around to the main Oaky Beach with that bag containing all of the mutton fish he had caught. At the same time he said he told his son to pack up his "stuff" and to head up to the car, and that was what his son did. The App said that he stayed in the water, swam around and put his bag down, and found some rocks and put them on top of his bag, and swam back to where his gear was. He described having put his bag in knee deep water. He said that where he put that bag would not have been within sight of anyone on the cliff. His evidence was that he then swam around to the Little Oaky Beach side, swam up what he referred to as the gutter, to where his clothes were, got out and dressed and packed up his diving equipment.
The App's evidence was that his son took his own "stuff" to the car which included some mutton fish, and that his cousin Kane left with his son, leaving himself and his cousin Adrian behind. The App said that when he swam back towards where the gear was, Adrian was not far behind him. He described Adrian and himself getting out of their diving gear and putting on normal clothes, packing their bags and heading up towards the track that they had originally walked down. The App's evidence was that apart from the two bags he referred to, he had not put anything in any other bag.
The App did not dispute the evidence of what he said to the Fisheries officers when the spoke to him. He apologised in his evidence for the language he used.
The App gave evidence that later that day around 7.30 / 8 pm he and his cousin Adrian went back to the same location and retrieved what he referred to as "my mutton fish and lobsters". His evidence was that he did not see Adrian get anything or do anything at that point. The App said he retrieved his hessian bag, put it in a plastic bag and put it in his backpack. That he proceeded back towards the beach and met up with Adrian whose mutton fish he said, were missing.
In XXM the App agreed that he did not want the Fisheries officers to take his catch that day, and that he was very concerned to make sure that his catch was hidden. He said his understanding was that Adrian did something similar, but not Kane and his son.
In XXM the App did not agree that when he fished for mutton fish he used a mesh bag because it was lighter in the water than hessian bags. He denied in his XXM that he ever held a hessian bag as described in the evidence of Hollywood or that he walked towards the cave area with that bag. He also denied that he, his son and two cousins at one point walked together to where their gear was on the rock platform.
It was put to the App that there had been no swimming that day, or hiding of another bag, suggestions which he denied. He maintained he did not get out on the rock platform.
The App also denied that he had a black abalone iron in his bag or that he had used an abalone iron that day.
The App in his XXM said that he and his cousins all had hessian bags that day. He agreed that at one point he and the other 3 males were sitting near each other and shucking the mutton fish but did not accept that some of the shells were being thrown like a frisbee into the sea, but later said his son was not involved in the shucking. He denied that they all then put the mutton fish into two hessian bags, which were then taken to the cave area and put there with rocks piled on to them. He maintained he had put his catch into his bag. He denied leaving any shells on the rock platform. The App in XXM said that he did not know where his cousin Adrian had put the mutton fish that he caught that day.
When video 3 from Ex 5 was played to the App in his XXM he agreed that the man with bare arms was him, and that he appeared to be carrying what looked like a black net bag, but ultimately maintained that he came out of the water carrying a black hessian bag.
The App in his evidence, in particular his XXM, was very antagonistic towards the Fisheries Officers. I have made some allowance in assessing the App's evidence for the fact that an Aboriginal person with the beliefs of the App, naturally may have a poor regard for Fisheries Officers whom he sees as preventing him from exercising his traditional rights to fish. The App in one part of his XXM asserted somewhat adamantly that there had only ever been two Fisheries Officers present that day and the other officers came after he had left and gone home. That evidence is inconsistent with the video recordings that are in evidence and cannot be accepted.
At times in his XXM the App was not responsive to the question asked, and simply repeated that he had hidden his catch from the Fisheries Officers in another bag.
On the topic of the App's traditional rights to fish, the App gave the following evidence. The App gave evidence that he belonged to The Walbunja People who form part of the Aboriginal Yuin Nation. He stated that there are 13 tribes in the Yuin nation and that his mother's tribe was the Tharama tribe, which was associated with the area from Ulladulla to the Shoalhaven river. The App's evidence was that his father belonged to The Walbunja People, and the App's understanding was that meant he, the App, had "the rights to collect, harvest my natural resources on land and water. They have always been there before white settlement. My ancestors done it before white settlement." That was what the App said he had been told by his father and uncles when a child. He described his father and uncles living off the land and the water. That they would take from the water mutton fish, lobster, conches, bumblers, oysters and fish.
The App's evidence was that he caught his first lobster when he was 7 or 8 years old, that he had been with his father and his uncles and gave it to his uncles. He described trading the lobster with his uncle for a few dollars.
In terms of the area that is associated with the Yuin Nation, the App's evidence was that it covers the area from at least La Perouse, and possibly the Hawkesbury River down to the Victorian border, past Eden, and inland as far as Bungendore. His evidence was that he had been told by his elders that the area covered up to about 5 kilometres out to sea.
The App's evidence was that he lived as a young child at Little Paddock, between Barlings Beach and Headland Point. In terms of how the family obtained things to live on, the App's evidence was that his father and his mother's brothers, mostly fished and dived. That he and his brother would take mutton fish, amongst other seafood, and the family would eat what they caught.
The App's evidence was that he was aware of other Aboriginal people who made use of the sea's resources and nominated his father's cousins in that regard. His evidence was that he did not recall any discussions with them about why they did that. The App said, "it was just natural to us".
The App gave evidence that in his youth he travelled to various camp areas and nominated, Dalmeny, Pebbly Beach and at the Cullendulla River. That the family mainly ate fish, including mutton fish and lobster. His evidence was that the fish would be shared with members of the family, which included his extended family.
The App described in his evidence being paid money by elders and his uncles for the fish he caught when he was about 11. He said that if ever he needed a new body board he would catch seafood and then trade it with his uncles and that was how he got by. He described in his evidence learning from his father how to fish and dive and as growing up he understood lobster, mutton fish, oysters and seafood generally to be "our natural resources".
The App also in his evidence described selling mutton fish and lobster to people other than his uncles. He described swapping fish for tyres for a car, swapping fish for other food. He also said that when his father had a job at a council, his father's workmates would want some lobster so he would swap some lobster for money. That he would use that money to help pay for things given the cost of living. In order to cover his expenses he would use "my natural resources", meaning seafood he obtained from the sea.
In his evidence the App said that the ability to obtain seafood from the ocean was important to him and described it as being "part of me". He gave evidence that he has a 19 year old son and a 14 year old daughter and that he had taught his son everything he knows about fishing and gathering, "as part of being a Walbunja man. Part of being part of the Walbunja tribe." That he has taught his son what he had been taught by his father and uncles.
In 2017 the App said he would share his catch with his mother, his father, the children, his uncles and his aunties. He also described having a freezer in 2017, and that if he froze seafood he caught, it would be for his use or for his family, but also said he did "barter, swap, trade" frozen fish. He said he did not have a business as such and had very little by way of financial resources.
In terms of knowing what size fish he could take the App said, "We know what not to take, you know" and that "there was never ever no gauges, or limits, or bag limits, or sizes". He described being able to fish for mutton fish all year round.
In XXM the App's position in relation to fishing was expressed as follows: "And it is my natural right, what I do on a daily basis, when I take my son and my nephews out to that water, to their water, to collect our natural resources, it is our right".
The App did not agree in XXM that some members of the Yuin community/nation did not agree to the taking of large amounts of mutton fish. He confirmed in his evidence in XXM that on occasions he would sell his catch to obtain money to pay for general living expenses, and that in part he sold mutton fish to bring in an income. At one point the witness said, "it's my natural right, to do what I please with my resources". At another, in terms of his attitude to his rights to fish he said, "No, I should be feeding Australian white people our seafood. You should be buying our product. We should be the main people, us natural sea- you know, and we should be getting our marine resources and feeding - you should be coming to us, and we should be catching our - you know, not youse making all the money off our natural resources on land or in the water."
The App went on to say that he had a dream that he would have a commercial fishing business free of any licensing requirements. At one point in the XXM he appeared to accept that his attitude to his fishing rights was not tied to traditional cultural rules but arose out of resentment at the destruction white people had done to the natural resources; AB 292/293.
Adrian Connolly, a cousin of the App, gave evidence in the App's case. Mr Connolly gave evidence that he was an Aboriginal man from the south coast and was part of a group that is represented in a native title claim. His evidence was that he was born in Moruya and that both his parents were Aboriginal. The witness gave evidence that his father on occasions went fishing and that he would on occasions go with his father, along with his grandfather, uncles and aunties. His evidence was that they would catch lobster, abalone and fish and that what was caught was consumed by the family. Mr Connolly said he still fishes and he provides fish to his family and members of the Aboriginal community where he lives.
In terms of rules governing his fishing, his evidence was that everything he knew about fishing he learned from his elders, and he could not state any particular rules. He said he was not aware of any need to speak to anyone before he went fishing and said, "Because I am an Aboriginal, I think that's my right to fish and collect without asking for permission"; AB 305.
The witness also gave evidence about the events on 29 December 2017 in the vicinity of Oaky Beach. His evidence was that initially he fished or gathered abalone on the northside of the rock platform and put his catch in a hessian bag and thought he had placed that bag in the rocks before moving to the south side, where he continued to fish. On the south side he said he was not fishing too far from the App and did so for about an hour.
At some point he said he decided to get out of the water to clean his catch and as he did so he said he threw the shells back into the water, with some of the shells falling on the rocks. Mr Connolly's evidence was that he put the abalone meat into his hessian bag. He described in his evidence pulling the abalone meat out of one bag, shucking it, and putting the meat into another hessian bag and said he then threw the shells away. According to his evidence in chief, when he had finished shucking the abalone, he placed the hessian bag inside his other hessian bag that had the abalone meat and went to the south side and left his abalone there, because he said he knew he had been seen by the Fisheries officers.
Mr Connolly's evidence was that while he was shucking abalone, so was the App who was getting abalone out of his own hessian bag. In XXXM the witness agreed that all 4 men shucked abalone around the same time for about 10 or 15 minutes. He said he understood that the App put the abalone meat into his own hessian bag, and that he did not assist the App in any way in that regard. His evidence was that the abalone meat in his hessian bag was only meat that he had shucked. His evidence was that he observed the App to put his abalone aside, but did not see where he put it, but saw him in the water. The witness said he next saw the App when they got back to where their clothes were, got dressed and walked back to the car.
Later that night Mr Connolly said he with the App returned to the location and went to where he had left his abalone. He described stopping at a different place to where the App stopped, the two places being he said about 3ms apart. The witness said he discovered that his bags of abalone were gone.
Mr Connolly was XXMED about what gear he wore when he was diving that day, and said he wore a black hood and a short length black wet suit, together with a black mask with a blue ring around it.
In XXM the witness said he would always use a hessian bag when he dove under water and maintained that he did so on 29 December 2017 and prior to being shown any video footage from the day, maintained that he had not used a mesh bag. Later in his XXM when showed some of the video footage taken by the Fisheries officers he conceded that none of the adults who had been fishing at the location that day had used hessian bags when fishing, but had used mesh bags; AB 336/337.
One topic pursued in Mr Connolly's XXM was communications between himself and the App about the giving of evidence in the proceedings. He agreed that they had talked about what had happened on 29 December 2017, but not about what they would say in their evidence.
Mr Connolly was taken to his evidence about shucking all the abalone that was in the first hessian bag, putting the abalone meat into the second hessian bag and asked what became of the first hessian bag. At one point in his XXM he said that he probably would have taken the first hessian bag home; AB 325. At another point in the XXM he said he didn't recall if he put the first hessian bag inside the first one: AB 326. Mr Connolly denied that the App had put his hessian bag inside of his. The witness denied that there had been abalone iron in the App's back pack and said it was in his.
Leanne Parsons gave evidence in the App's case below. Her evidence was that she was a 61 year old Aboriginal woman who belonged to two Aboriginal groups, the Walbunja and the Bidawal, both of which were groups which belonged to a larger group referred to as the Yuin Nation. The witness referred to the Walbunja group being associated with the area from Ulladulla down to Narooma and the Bidawal group was associated with an area near Mallacoota around the Victorian border.
Ms Parsons evidence was that she belonged to the Walbunja group through her mother's ancestors, and that an Aboriginal person belongs to the group that their parents belonged to. Her evidence was that she considered herself to be a "knowledge holder" in relation to that group, someone familiar with the laws and customs of the group. The witness gave evidence that members of the Walbunja group had rights to hunt and gather, and to collect food from the ocean. Ms Parsons gave evidence that she learned to dive and fish when she was very young having been taught by her mother.
Ms Parsons gave evidence that taking things food from the ocean was "a very significant part of" the life of the members of the Walbunja group. Her evidence was that the type of food taken from the ocean included, mutton fish, lobsters, pippies and periwinkles and that she had been taught to do so by her aunties, and grandfather. The witness's evidence was that she never saw any of her relatives asking for permission to take that food from the ocean, and she was not aware of any steps that had to be taken before it could be. Her evidence was that at around 8 or 9 years of age she began to gather pippies to cook to eat.
Ms Parsons described her family sharing with other Aboriginal groups the food they had taken from the ocean. In her evidence the witness said that she and her family would on occasions go fishing with other Aboriginal people, that there would be no plan, but "everyone had to go and collect something". The witness described using hand spears when fishing and dived to obtain mutton fish. Her evidence was that the food was caught to feed everyone, and it was the main part of the diet.
Ms Parsons' evidence was that when she was growing up she learned about what times of the year certain fish were more plentiful, and she has passed that knowledge on to her grandchildren. The witness gave evidence that when she was young her family had little money and would "trade", "barter", "swap" or "sell" their fish for other food or money. In her evidence she gave specific examples of when she could remember doing so and money was obtained; AB 351; and when exchanged for other food; AB 352. Her evidence was that there was no requirement that a member of the Walbunja group could not sell fish that had been caught for money; AB 351.
Ms Parsons evidence was that her understanding of Walbunja custom and law was that there was no limit on the amount of abalone, that a person could take from the ocean; AB354, 356. In XXM the witness said that she was never taught that there were rules about not taking too much fish from a particular location; AB 358. The witness explained later that Aboriginal people do not go back to the same spots over and over; AB 364. In XXM Ms Parsons did not agree that if an Aboriginal person went outside of their clan's boundary they would need to speak to the elders of the other clan for permission to do certain things in that clan's territory; AB 360-361.
When challenged in XXM about whether Walbunja people were permitted to sell their catch for money Ms Parsons at one point said, "I was brought up to survive. A part of that survival was selling. A part of that survival was trading or bartering or whatever we want to call it these days but that's how we were brought up. And it was part of our practices. It was something that we've always done since I could remember, back when I was young. And I was taught that by my ancestors"; AB 364.
The App called Dr Natalie Quoc a consultant anthropologist and a report prepared by her in relation to other litigation was tendered and the doctor gave oral evidence. In her oral evidence Dr Quoc said that the report represented her current view in relation to matters of law and custom and rights and interests associated with the Aboriginal people of the south coast. That report reviews the evidence concerning the role of fishing , and in particular abalone, in the culture of south coast Aboriginal people.
The report at AB 657 records that "Early observers consistently noted the heavy reliance on marine resources of the Aboriginal coastal population", with references to observations made by Captain Cook and Tench and Governor Phillip in support of that statement.
The report records that, "From their earliest encounters, and not out of keeping with their own practice of exchange with other groups for non local items, Aboriginal people engaged in trade with white explorers, travellers and settlers": AB659. In support of that conclusion, Dr Quoc provided an interpretation of a drawing by an Aboriginal artist known as "Mickey the cripple" which was said to depict Aboriginal people of the mid-south coast in the 1870s and 1880s. Her interpretation of one particular picture as showing "involvement in the processing of abalone, presumably for the Chinese market" and that "women are shown tending boiling pots while the abalone are shown laid out on drying racks"; AB 661 was the subject of XXM. The drawing itself was tendered as part of Ex 6 below which included the doctor's report.
Dr Quoc gave oral evidence about the drawing and said she believed it showed that Aboriginal people were engaged in trading with non-indigenous people. In expressing her opinion about the drawing depicting Aboriginal women boiling and drying abalone for the Chinese market, the witness said, "I do know a little about Chinese culture and abalone because I am Chinese and my father was a restauranteur", and what was depicted was said to be consistent with how the Chinese prepared abalone. Dr Quoc in her oral evidence said that her interpretation of the diagram was consistent with an extract of an account of Aboriginal people supplying abalone to the Chinese in the 1930s.
In XXM Dr Quoc accepted that there may be content in the drawing that she was not able to understand; AB393. It was suggested in the XXM that aspects of the drawing might well bare a different interpretation than the one Dr Quoc advanced in her evidence. At times the witness conceded that the diagram may be construed in a different way; AB 397.
At AB 662 the report contains the following, "With large families and meagre monetary resources most families continued to rely substantially on the harvest of seafoods. These resources continue to form an important contribution to the economy today".
At AB 670 the following opinion is expressed in the report, "There is a sense in which fishing and gathering is seen as integral to south coast Koori nature, as a part of their upbringing and cultural heritage, and, even further, as an essential part of their being."
Dr Quoc at AB 671, expressed the opinion that "south coast Kooris maintain distinctive approaches to fishing and gathering". One such approach was said to be that "fishing and gathering is traditionally governed by a maxim regarding respect for the natural environment and by rules which work to protect and conserve marine resources". Dr Quoc's report also states, "A prime guiding principle is that people should only take what they need to feed themselves and their families and guests and that the species should not be depleted".
On the question of whether or not all people of the Yuin nation consider it is permitted to sell seafood, the report at AB 673 suggests that different people in that community have different views.
Dr Quoc in her report at AB 674 states that, "A second guiding principle of seafood harvest is that the catch should be shared. Fishing and gathering activities are not aimed solely at individual consumption but to supply food to the household and the broader community".
Dr Quoc in her report at AB 675 states, "We may count as a third feature of the traditional orientation of Yuin fishing and gathering a tendency toward gender specialisation" and records one source as stating, "[It was] the women's (job) to collect abalone, gathering………You know what the men done, they fished for the big fish, they was the snappers and the jewies and the groper and we'd run along the beach with our little…..on the rocks with our screwdrivers getting abalone and shucking them on the rocks and cleaning them".
Dr Quoc in her report at AB 683 states the following, "it is my opinion that practices, beliefs, teachings and actions engaged in today by Yuin people reflect the continuance of Yuin customs and traditions passed down from generation to generation from a time before British colonisation. ……..As I have observed it Aboriginal people of the south coast maintain the privilege of taking marine resources as a Native Title right. Contemporary Aboriginal fishing practice , including the taking of abalone, continues to be guided by a body of knowledge and skill acquired by transmission from generation to generation………………….The taking of abalone is…………curbed by indigenous restrictions on numbers and sizes. Ubiquitous protocols, which may be counted as having regard for environmental, spiritual and culinary considerations, surround the processing of abalone and the disposal of shells throughout the south coast. In some cases the necessity for following such protocols is couched in spiritual terms or in terms of the sentience of abalone, such as the belief the abalone will cry if taken from the water. These protocols may be counted as being normatively enforced through demonstrative training and correction by corporal punishment, (a clip on the ear), complaint, reprimand and shaming. Breaches may also attract supernatural indictment."
In her evidence in chief Dr Quoc outlined the approach she took to anthropology, detailing that she had lived with a south coast Aboriginal community for 12 months in completing her doctorate. Her evidence was that the Ap was not part of the community in which she lived. The witness also gave evidence that she had some limited involvement in the preparation of the native title claim filed in the Federal Court in relation to the south coast.
In her oral evidence Dr Quoc said, "Aboriginal society was never static. There were always the development of innovations and also the import of technologies", when considering the adoption by Aboriginal people of techniques from the settlers. On the issue of the exploitation of resources through sale, Dr Quoc said, "I think the readiness with which people engaged in trade with newcomers was based on the fact that trade was already an existing part of Aboriginal society and Aboriginal economy."
Dr Quoc was pressed in her XXM on the issue of the commercial sale of abalone and whether it was encompassed by the traditional right to fish. Her opinion was essentially reflected in the following evidence, "There are substantial communal needs that a responsible Aboriginal person will be involved in assisting. And these days it may not help them to get a whole bunch of abalone. They may actually need to have some cash to meet their very basic needs…………they have a right to take the resources from their country to sustain themselves. And that doesn't mean sustain themselves in a state of absolute hand to mouth existence."
There are certain agreed facts relevant to the arguments advanced in this case concerning the Native Title Act 1993 (Cth) (NTA). I will set out those agreed facts when dealing in that section of my judgment which deals with the arguments concerning the NTA.

The Local Court Judgment

The Magistrate in his judgment reviewed the evidence called in both the prosecution case and that called on behalf of the App. The Magistrate considered that the App's version that he knew that the Fisheries Officers were present and watching what was occurring, and he allowed his son to leave on his own carrying "heaps of mutton fish" did not make sense; [23]. His Honour considered that if the Accused's version was true, he had exposed his son to detection and the laying of charges.
The Magistrate considered that in "significant respects" the evidence given by Adrian Connelly was "incredible and unreliable"; [34]. His Honour considered that "the divergence in the versions given by Mr Connolly and the" Appellant "was significant". He also considered that, "The evidence of Mr Connolly was tailored to take full responsibility for the abalone found in the hessian bag located in the undercut cave and in doing so, absolve the" App. His Honour noted that at the time Mr Connolly gave his evidence he was not at risk of being prosecuted as the limitation period for the bringing of charges concerning him had expired.
The Magistrate found that the Accused and the other men were fishing pursuant to a joint enterprise, and considered that could be drawn from the following factual matters which he found established by the evidence: (i) the three divers "swimming together……in and around each other"; (ii) the divers all duck diving consistent with taking abalone or lobster; (iii) the divers exiting the water around the same time each diver carrying a mesh catch bag with contents consistent with the size, shape and colour of abalone; (iv) all three divers walking out of sight towards the base of the cliff; (v) the absence of any other persons in the vicinity; (vi) the three divers and the boy all close together on the rock platform; (vii) the boy seen collecting shells and throwing them into the water after they had been thrown by others following the shucking; (viii) the freshness of the shells and abalone meat found by the Fisheries Officers; (ix) the close proximity of the App to the undercut cave and (x) the App being seen holding a laden hessian bag similar to that found by Fisheries Officers concealed in a rock pile in the undercut cave".
His Honour considered that on the evidence, "There was no window of opportunity for the Accused to have entered the water with another hessian bag, swim, with that hessian bag to an undisclosed place, stow it under a rock below the high water mark and swim back". In essence, His Honour rejected both the evidence of the App and of Adrian Connolly.
The Magistrate, in so far as charges 1, 2 and 3 that require the O to have possessed abalone, said that he was satisfied beyond reasonable doubt that the App had joint possession of the abalone the subject of those charges.
In relation to the App's reliance on s.211 of the NTA in his defence of those charges, the Magistrate rejected the App's arguments and his reliance on that provision. One issue that arises in these proceedings is whether the Accused bears an onus in relation to his reliance on s.211 of the NTA to establish that his conduct comes within its terms. The Magistrate noted that s.211 is silent on that issue. The Magistrate considered that the App has the legal onus, what His Honour referred to as "bringing himself within the provisions of s.211" on the balance of probabilities. The Magistrate considered that the Appellant had not discharged that burden.
His Honour was of the opinion that the App had not "established Yuin traditional laws and customs as recognising his claimed right to include spontaneous taking by any Aboriginal person of large numbers of abalone, of whatever size, from whatever location for anticipated sale to an unspecified market"; [92]. The Magistrate considered that the App, "failed to provide sufficient evidence to substantiate his claim that his taking of the abalone was the exercise of a traditional native title right"; [94]. His Honour considered that the App's "conduct was not an exercise of traditional laws and customs nor was it for the purpose of satisfying personal, domestic or non-commercial communal needs". For essentially those reasons, the Magistrate found the Appellant guilty of the first 3 charges.
In relation to the 4th charge of, without reasonable excuse, the App obstructed Fisheries Officers by refusing to allow them to search his bag, the Magistrate found that the observations made by the Fisheries Officers entitled them to form a belief that the backpack contained things connected with a fisheries offence. His Honour considered that by continuing to walk from the Fisheries Officers the App had not demonstrated a reasonable excuse in failing to comply with the officers' demands.
In relation to the 5th charge of abusing fisheries officers, the Magistrate noted that the App did not dispute he had said the words recorded of his interactions with the fisheries officers that day. In that recording the Appellant said to the officers: "You white mother fuckers" and "Fuck off. Fucking piece of shit. You little scumbags, look at you, you little scabs. Fucking scabs, that's what you are, a pair of little scabs, white little scabs". His Honour considered those words constituted "abuse" within the meaning of the offence creation provision.
In relation to the 6th charge that the App without reasonable excuse failed to comply with requests made by the Fisheries Officers to state his name and address; The magistrate considered that the evidence established that the officers had a believe that the Appellant had committed a fisheries offence and that under s.258 of the FMA, they required him to state his name and address. The magistrate considered that the evidence established that the officers had produced their instrument of authority when the App had asked to see their warrant. His Honour considered that the App had a perception that the Fisheries Officers knew who he was, given that the App had said, "You know who I am…..You fucking know who I am, I'm not telling you anything". The Magistrate considered that did not amount to a reasonable excuse in the circumstances; [120]. The magistrate therefore found this offence proved beyond reasonable doubt.

The Appeal, Evidence and Submissions

No additional evidence was sought to be adduced on the Appeal.
The two fundamental issues on the Appeal were the same issues that were raised in the Local Court. The first issue is whether the Prosecution has proved beyond reasonable doubt that the Appellant was in possession of the Abalone the subject of the first 3 charges. The Prosecution case is that he was in joint possession of the Abalone with the other men who were diving/fishing with him that day. If I am not satisfied that the Appellant was in joint possession of the Abalone, the Prosecution of the first three charges fails. If I am satisfied beyond reasonable doubt that the Appellant was in joint possession of the Abalone the subject of the first 3 charges, it is necessary to deal with the submissions advanced as to s211 of the NTA before determining whether or not the Appellant is guilty of those 3 offences. In relation to the remaining charges, the essential issue raised is whether the Prosecution have established those charges beyond a reasonable doubt.

What the Prosecution must prove to establish joint possession of the Abalone

Possession is defined in s. 4 of the FMA as follows: ""possession" of a thing includes having the thing under control at any place, even though some other person has physical possession of the thing". The definition is not exhaustive and on the face of it, includes the common law concept of possession. Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody. The physical control or custody may be shared with other persons but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared. See Amanatidis (2001) 125 A Crim R 89.
In Williams v Douglas (1949) 78 CLR 521 Latham CJ, Dixon and McTiernan J held that the concept of possession "is wide enough to include any case where the person alleged to be in possession has hidden the thing effectively so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident". While that case concerned the concept of possession in a particular statutory context, it has been applied by the Court of Criminal Appeal in a more general context; see Regina v Juliano Delon unreported NSWCCA 6 October 1992.
In the context of this case, the prosecution in relation to the first charges, must prove beyond reasonable doubt, that the App, acting in concert with the other persons with whom he was fishing, pursuant to a joint criminal enterprise, shucked the 47 undersized abalone shells that were found by the Fisheries Officers on 29 December 2017. As I understand the prosecution case, it is the possession of those abalone shells while being shucked that constitutes the possession at the heart of that charge.
In the context of this case, the prosecution in relation to the second and third charges, must prove beyond reasonable doubt, that the App, acting in concert with the other persons with whom he was fishing in effect placed the abalone in the bags in which it was found, secreted it in the rock pool where the bags were found, exercised control over the abalone with the others with whom he was fishing, to the exclusion of other persons with whom he was not acting in concert.
On the issue of whether the Prosecution has proved beyond reasonable doubt that the App was in joint possession of the abalone that was shucked and found in the hessian bags by the fisheries officers and the subject of the first 3 charges, I will start by assessing the evidence of the Mr Connolly and the App about what they did on 29 December 2017. In doing so, I have had regard to the fact that the Magistrate had the advantage of seeing both men give evidence.
As is apparent from the summary of Mr Connolly's evidence I set out earlier, he is supportive of the App's case that the App did not possess the abalone found by the Fisheries Officers, but that the App had caught a separate amount of abalone, placed that in a hessian bag, in a different location to the location where the Fisheries Officers located the abalone the subject of 2 of the 3 charges.
There are aspects of Mr Connolly's evidence that are difficult to accept. He claimed he had used a hessian bag when diving for abalone that day, and not a mesh bag, even though it would have been a heavier drag in the water and he could not clip it to his dive belt. He also maintained in XXM that he never used a mesh bag when diving, only a hessian bag. When confronted with the video footage taken that day he had to concede that all 3 divers had used mesh, not hessian bags when diving. Given Mr Connolly had been so adamant up to that point in his cross-examination that he had used a hessian bag, and had always done so, his concession when shown the video footage, at the very least, indicates that he is not a reliable witness as to the events on 29 December 2017. It is also not without significance that his adamant assertion that he and the App had used a hessian bag when fishing for abalone, strongly on the face of it was supportive of the App's account.
Mr Connolly's evidence in XXM that he put the abalone meat from the first hessian bag into the second bag, and that he either took the first hessian bag home, or put the empty first hessian bag inside the second bag, before it was placed in the water, is not consistent with what was found by the Fisheries Officers. While not being able to recall what happened to the first hessian bag, and how the two bags were combined, he was adamant that the App had not put a hessian bag inside his hessian bag. That part of his evidence in cross-examination was far from convincing, in my opinion.
Mr Connolly claimed the abalone iron was his, and that it had been found in his backpack. The App as I noted above, was found to have the abalone iron in the backpack he had when stopped by the Fisheries Officers. The evidence by the Fisheries Officers on that issue was not challenged in cross-examination, and in those circumstances, I propose to accept it, which calls into question both Mr Connolly's evidence and the App's evidence about the abalone iron.
I note also that Mr Connolly is related to the App and had been contacted by the Ap to give evidence in his case and appears to have known that an issue in the case was whose abalone had been seized by the Fisheries Officers. He could not be considered to be an independent witness in these circumstances.
I noted earlier the Magistrate's expressed concerns about the truthfulness of Mr Connolly's evidence.
A reading of Mr Connolly's evidence, for the reasons I have given, does not support a finding that he is a reliable witness as to the events on 29 December 2017.
Aspects of the App's evidence are also difficult to accept. Of some significance is my inability to accept his evidence that he dived and fished using a hessian bag, and not a net or mesh bag. The video evidence showed him at one point carrying a black net/mesh bag and he appeared to accept this in his cross-examination at one point. Given the nature of hessian bags, while they may be useful bags to store fish in and leave in water, common sense suggests that they would not be useful to dive with because they would be heavy and have considerably more drag in the water. The use of hessian bags to fish and store the abalone in is an important factual issue in this case, given the App's account of events, and in my opinion, the App's evidence about that use is unreliable as it is inconsistent with the objective evidence being the video footage, which strongly supports the evidence of the Fisheries Officers on that issue.
The App's evidence that there had only ever been two Fisheries Officers present on 27 December 2017 simply cannot be accepted when I have regard to the evidence of the Fisheries Officers, but also the objective evidence revealed in the video footage and the recorded conversations had by Fisheries Officers that day at the scene. Again, the objective evidence that is available contradicts the evidence given by the App.
I also cannot accept the App's evidence that he did not have an abalone iron with him when he was stopped by the Fisheries Officers. It was never suggested in XXM of the Fisheries Officers that they were mistaken about finding the App with an abalone iron when he was stopped that day. The denial of the possession of the abalone iron is an important factual matter, as it represents, in my opinion, an attempt by the App to refute an important objective fact in the Prosecution's case.
It must be said that the App's evidence as to the events that day, has, even on the face of it, a certain implausibility and convenience about it as an answer to the Prosecution case. His account essentially was that he was with two of his cousins and his young son that day, that the cousins and he were diving for abalone at the same location. That the three of them caught and shucked abalone at that location. That the Fisheries Officers found two hessian bags, one inside the other, with abalone in them. However, he was not involved in catching that abalone, but caught and stored other abalone in another hessian bag which he left not far from the hessian bags containing the abalone that were found by the Fisheries Officers and which is the subject of the first 3 charges. That the App and Mr Connolly went back later at night and retrieved his bag and discovered that Mr Connolly's bag had been taken.
I also note that the observations of Officer Hollywood that he saw the App with a hessian bag, which appeared to carry abalone, near the cave like feature where the officers found the abalone the subject of the second and third charge, were not challenged in cross-examination. Those observations are entirely consistent with the App being responsible for placing in the water at least one of the hessian bags found by the Fisheries Officers that day.
In considering what, if any, weight I can give to the evidence the App gave as to what occurred on 29 December 2017, I note the Magistrate did not accept the App's account, implicitly finding the App not to be a witness of truth as to the events on 29 December 2017.
Overall, I simply cannot accept the evidence the App gave about in effect having separately caught abalone, stored it in a separate hessian bag, a bag which was not found by the Fisheries Officers and which he later at night, returned and retrieved.
The fact that I have rejected the account of the Ap about the events of 29 December 2017, does not mean I automatically find that the App was in joint possession of the abalone found by the Fisheries Officers on 29 December 2017. I must still scrutinise the Prosecution evidence and see if I am satisfied that it has proved that the App was in joint possession of that abalone.
There were not many substantial challenges in cross-examination of the Fisheries Officers as to their observations of the actions of the App and the men he was with that day. All of the Fisheries Officers evidence was consistent with the App diving for abalone that day with 3 other men, and his son being present. There is a strong inference the three men were acting jointly in relation to the diving, shucked the abalone and stored their abalone together in the sense of one bag of abalone meat being inside the other based on the following: how close the divers were to each other, that at least two of them were said to be cousins of the App, that they dived in a similar way, i.e., duck dived, that two bags of abalone meat were found , one inside the other, that the Ap and at least one of his fellow divers were aware before they left the scene of the likely presence of Fisheries Officers. The overwhelming inference is that they stored it where they did, in an attempt to hide it from the Fisheries Officers being conscious of their presence before they left the location. There is no evidence from any of the Fisheries Officers that supports a hypothesis that the abalone meat in the bags belonged to anyone other than the App and the two men he was diving with. The officers saw no other persons in the area where the App was apart from his two fellow divers and his son. The observations of the shucking of the abalone, the throwing of the abalone shells by the group, the presence of an abalone iron in the App's bag, and the manner in which the abalone meat was found, all support an inference beyond reasonable doubt that the App jointly possessed the abalone in the sense I explained earlier, with specific reference to Williams v Douglas in relation to the abalone found in the two hessian bags which is the subject of the second and third charges.

The App's reliance on s.211 of the Native Title Act (Cth)

Having found that I am satisfied beyond reasonable doubt that the App was in joint possession of the abalone found by the Fisheries Officers on 29 December 2017, it is now necessary that I consider the arguments advanced by the App in relation to s.211 of the NTA.
There are certain Agreed Facts between the parties that have particular relevance to this aspect of the App's case. They are as follows:
The App forms part of the native title claim group identified in the native title determination which has been filed in the Federal Court of Australia on behalf of the South Coast People. That Application has been assessed by the National Native Title Tribunal and found to have met the standard required to permit the application to be registered. The Application has not yet been determined in the Federal Court. As a consequence of registration of the Application, and only for the purposes of s.211 of the NTA, the App can be considered a native title holder until such time as the Application is determined, withdrawn or dismissed. The Respondent to the Appeal accepts that the App is an Aboriginal person and a descendant of the ancestors named in the Application.
The Respondent in its submissions accepted that, "The effect of the agreed facts at [4] is that assuming the Application is neither withdrawn nor dismissed before the resolution of these proceedings, the Appellant can be taken, for the purpose of these proceedings, to be a member of the group holding communal (native title) rights (if any are established)." [7] Resp's NTA written submissions.
The App asserts that the rights he is entitled to exercise include "the right to access and to take the resources from the land and waters for any purpose". The App argues that the right he asserts includes a right to take, possess and otherwise deal with fish. The App argues that his native title rights and interests have been recognised since 1993 under the NTA. [7] App's written submissions.
The App argues that the effect of s.211 of the NTA is that the conduct relied upon for each of the possession charges would be permissible if it had been engaged in pursuant to a license or permit or authority granted or issued under the FMA, and that the operation of the section suspends the operation of the FMA as far as his conduct was concerned on 29 December 2017.
Section 211 of the NTA relevantly provides: 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: … (b) fishing; (c) gathering;
The App argues that his conduct in possessing the abalone the subject of the 3 possession charges would have been permissible if he had been engaged in that conduct pursuant to a licence or permit or authority granted or issued under the FMA. In that regard the App points to s.37 and s104 of the FMA. Section 37 of the FMA relevantly provides: 37 Defence - special approval for research or other authorised purposes (1) The Minister may approve the taking and possession of fish ….. of any kind or of a specified kind for any or all of the following purposes: (a) research, (b) aquaculture, (c) aquarium collection, (d) aboriginal cultural fishing, … (2) An approval may authorise the taking of fish or marine vegetation by any method or by any specified method, from any waters or any specified waters or in any other specified way, despite any provision of or made under this Act to the contrary. (3) The Minister may grant an approval under this section: (a) by issuing a permit to a person that authorises the taking and possession of fish or marine vegetation, …
I note that Aboriginal cultural fishing is defined in s4. of the FMA to be "fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose".
Section 104 of the FMA relevantly provides : 104 Provisions relating to licensing of commercial fishers (1) Any eligible person may apply to the Minister for a commercial fishing licence. … (3) The Minister is required to issue a licence to an eligible applicant unless the Minister is authorised by the regulations to refuse the application.
There was no issue before me that abalone falls within the definition of "fish" in the FMA.
The App's argument is that the existence of the regulatory scheme in the FMA in relation to fishing as reflected in sections 37 and 104 of the FMA , engages s.211(1) of the NTA. That if s.211(1) of the NTA is engaged, the effect of s.211(2) of the NTA is that the FMA regulatory provisions do not "prohibit or restrict the native title holders from carrying on the class of activity (here fishing or gathering), or from gaining access to the land or waters for carrying on the class of activity, where they do so (a) for the purpose of supplying their personal, domestic or non-commercial needs and (b) in exercise or enjoyment of their native title rights and interests". The regulatory provisions in ss. 16 and 18 of the FMA which regulate size and quantity of fish that may be taken, and clause 94 of the FMGR, would, according to the argument, not apply to the conduct of the App on 29 December 2017, if s.211 of the NTA is engaged.
There was no real debate before me as to whether s.211(1) of the NTA was engaged. The Resp appeared to accept that s.211(1) of the NTA was engaged by the provisions of the FMA. It was the construction and application of s.211(2) of the NTA which was the focus of submissions before me.
Three central issues raised by the parties in relation to the application of s. 211(2) of the NTA are as follows: what, if any, onus of proof, was on the App to establish facts that fall within the provision. A second issue of importance raised was the meaning of the phrase "for the purpose of satisfying their personal, domestic or non-commercial communal needs". The third issue is whether the evidence, whatever onus was found to lay on the App, resulted in the application of s.211(2) of the NTA such that the relevant provisions of the FMA did not apply to him.
Before I consider those three issues, which are at the heart of the appeal in this case concerning the first 3 charges, I propose to say something more about s.211 of the NTA and what has been held in relation to the approach to be taken to its construction.
Section 211 of the NTA is not referred to in any explanatory memorandum issued by the Commonwealth in relation to the NTA. It appears it was introduced as a Green sponsored amendment when the legislation was in the Senate. The amendment to the legislation which became s.211 was moved in the Senate by Senator Chamarette from Western Australia. In doing so the Senator explained the purpose of the amendment in the following terms: Amendment 33B to insert the new clause 196A seeks to ensure that Aboriginal people are not prevented from exercising their inherent native title rights and interests in circumstances where state and Commonwealth laws allow others to engage in those activities. The amendment does not prevent a state or the Commonwealth from prohibiting a native title activity where it is necessary, for example, for genuine conservation reasons, but it does prevent them from doing so while allowing others to engage in that same activity. In other words, the amendment prevents laws from having a discriminatory operation on Aboriginal people whose rights to conduct certain activities can sometimes be traced back many thousands of years. The clause is particularly important for those Aboriginal and Torres Strait Islander people who may already be largely dispossessed and whose native title rights are limited to particular activities or resources. Without it there could be a creeping process of dispossession as native title rights are regulated out of existence, one by one, while other people remain free to carry out those same activities. The clause is critical in protecting Aboriginal rights to hunt, fish and gather where the impact of the activity is not such as to require its non-discriminatory prohibition. The clause is limited in its operation to native title rights in relation to hunting, fishing, gathering or cultural or spiritual activities where those activities are for personal, domestic or communal purposes. Other types of activities can also be prescribed if the need arises. A similar protection of native title rights exists in Canada and New Zealand. Amendment No. 34A is simply an effective confirmation under clause 197(2). It is basically to prevent the impairment of interest where native title rights may already be present in relation to land or waters. …….. I am concerned that the bill as it now stands will not allow native title fishing rights to be exercised in New South Wales, Victoria, South Australia or Tasmania because laws in those states do not make any special provisions for Aboriginal fishing interests. In view of the current harassment, prosecution and occasional gaoling of Aboriginal fishers in southern states, it would be extremely unfortunate if the native title bill does not allow traditional fishing rights to coexist with statutory fishing laws. It is really in response to that that the Greens present their two amendments." (Senate Hansard 21 December 1993 p.5440-1).
Senator Evans, then Minister for Foreign Affairs, confirmed that the Government supported the amendment. (Senate Hansard 21 December 1993 p.5441).
In considering the construction of s211 of the NTA and its application to the circumstances of the current case, I have also had regard to what members of the High Court have said in relation to the approach to be taken to construing the NTA. In Commonwealth v Yarmirr [2001] HCA 56 McHugh J said: [123] In construing the Act, it is necessary to remember the warning that this Court gave in North Ganalanja Aboriginal Corporation v Queensland[158]: "Unless the Act is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued." [124] It is also necessary to keep in mind that, in the Second Reading Speech on the Native Title Bill 1993, the then Prime Minister, Mr Keating, saw Mabo [No 2] as giving Australians the opportunity to rectify the consequences of past injustices[159]. The Act should therefore be read as having a legislative purpose of wiping away or at all events ameliorating the "national legacy of unutterable shame"[160] that in the eyes of many has haunted the nation for decades. Where the Act is capable of a construction that would ameliorate any of those injustices or redeem that legacy, it should be given that construction. [125] If the purpose of the Act was to recognise native title in any case where Aboriginal or Torres Strait Island peoples still possessed rights and interests in respect of land or water under their traditional laws or customs, the duty of the courts would be to ensure that that purpose was achieved. That would be so even if it meant giving a strained construction[161] to or reading words[162] into the Act. In an extra-judicial speech, Lord Diplock once said that "if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed"[163].
Justice Kirby in the same case said at [249]: In resolving questions for the determination of native title rights and interests, it is always necessary to focus first on the Act itself. Whilst the common law provides the background against which the Act operates [314], and is referred to in the Act [315], the Act itself must be construed according to its terms, taken as a whole [316] and having regard to its beneficial purpose [317].
In my opinion, both McHugh and Kirby JJ have indicated that courts when construing the NTA, should be conscious of the purpose behind the legislation, which in so far as Aboriginal and Torres Strait Islander people are concerned, is a beneficial and remedial one, and to give the legislation a construction which seeks to achieve that purpose, even if the construction might be one that is thought to be strained.
Their Honours' approach appears to be consistent with the content of the Preamble to the NTA which, amongst other things, contains the following: The people of Australia intend: (a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
The concept of "native title rights and interests" in s.211 is defined in s.223 of the NTA as follows: 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 223 of the NTA has been considered as based upon what the High Court said about the nature of native title in Mabo v State of Queensland [no2] (1992) 175 CLR 1; see Priestly JA in Mason v Tritton (1994) 54 NSWLR 572 at p.599 and Underwood J in Dillon v Davies (1998) 145 FLR 111.
The effect of s.211 of the NTA, if engaged, has been considered by the High Court in Western Australia v The Commonwealth (1995) 183 CLR 373. The High Court at p.474 described the effect of s.211(2) upon a relevant State law as follows: Section 211(2) removes the requirement of a "licence, permit or other instrument granted or issued ... under the law" referred to in s.211(1)(b) as a legal condition upon the exercise of the native title rights specified in sub-s.(3). If the affected law be a law of a State, its validity is unimpaired, but its operation is suspended in order to allow the enjoyment of the native title rights and interests which, by s.211, are to be enjoyed without the necessity of first obtaining "a licence, permit or other instrument". Again, the effect of s.211 is not to control the exercise of State legislative power, but to exclude laws made in exercise of that power (inter alia) from affecting the freedom of native title holders to enjoy the usufructuary rights referred to in s.211.
As I understand it, if s.211(2) of the NTA is engaged, the State regulatory law remains valid, but its operation is suspended in order to allow the enjoyment of the native title rights and interests.
I turn now to address what in my opinion were the three central issues raised by the parties.

Is there an onus of proof on the App to bring himself and his conduct within the scope of s.211(2) of the NTA?

The App argues that there is no onus, on him, in any sense of that word, to bring himself within the terms of s.211(2) of the NTA. The App argues that the Prosecution must prove beyond reasonable doubt that the provisions of the FMA apply to the App and this comes about, as I understand the argument, because of the existence of s.211(2). The App points to the fact that s.211(2) contains nothing specifically directed to this issue on its terms. The App also argues that an interpretation of s.211 which does not cast an evidentiary or persuasive burden on the App, is "most compatible with the objects of the NTA and best recognises and accommodates the profound disadvantage the NTA seeks to alleviate". [27] App's written submissions.
The App submitted that the relevant facts which determine the scope of the application of s.211(2) of the NTA to the FMA are what was termed "constitutional facts" and no party bore an onus or burden of proof in relation to such facts. They were said to be "constitutional facts" because they were necessary for the Court to have to determine the constitutional inconsistency between the FMA and s.211 of the NTA. It was argued that the "the facts must somehow be ascertained by the court responsible for deciding the validity of the law", and that a party did not have an onus in that regard; [26(k)] of the App's written submissions.
Alternatively, the App argues that any onus the App bears is no more than an evidentiary onus, and once there is some evidence capable of creating doubt as to his guilt, the persuasive onus rests on the Prosecution to prove his guilt beyond reasonable doubt; [28] App's written submissions.
The Resp argues that the App must prove on the balance of probabilities the facts which fulfil the conditions set out in s.211(2) in order to rely upon the effect of s.211(2) of the NTA, in his defence of the three possession charges. The Resp argues that the principles discussed in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 are applicable here and that an application of those principles results in a conclusion that the App has the onus of proof in relation to s.211 of the NTA. The Resp argues that s.211 "sets out a statutory exception that arises from a matter entirely distinct from the subject matter of the relevant offences" and that that matter is "peculiarly within the knowledge of the defendant"; Resp's written submission at [38] - [39].
This issue has been considered in some of the decided cases which I now propose to review.
In Mason v Tritton (1994) 34 NSWLR 572 the App dived for abalone in ocean waters near Narooma on the NSW South Coast, and brought 92 to shore. After shucking them he took them to his home. He was charged under the then Fisheries and Oyster Farms Act which made it an offence to shuck abalone adjacent to ocean waters and to possess more than 10 Abalone. Mr Mason defended the charges on the basis that he was entitled to do what he did in exercise of a native fishing right. In the conduct of his case in the Local Court Mr Mason did not give evidence.
While at the time of the appeal in the NSW Court of Appeal the NTA had been enacted (although it appears not yet commenced), the decision focussed upon what needed to be proved to establish at common law a relevant native title right. Priestly JA considered that the App's defence in that case failed because there was a "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." (At p.604).
Gleeson CJ, as His Honour then was, agreed with the reasoning of Priestley JA but added some of his own observations, which I consider are of importance here. The Chief Justice made the following point about the nature of fishing: "Fishing is an activity which is so natural to people who occupy , or visit, coastal regions, that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law…………………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. This he failed to so." (at p.574).
Kirby P, as His Honour then was, noted that the App in that case had failed to give evidence and therefore failed to discharge the "evidentiary or forensic onus", (at p590), that was on him to prove that he was collecting abalone within the ambit of the traditional and native entitlement which he had set out to prove.
All three judges clearly considered that the obligation was on the App in that case to establish the existence of the native title right to fish, and that the App's conduct was in compliance with the ambit of that right. There appears to be a difference between the nature of the onus that Gleeson CJ and Priestley JA said lay on the App in that case, to the onus that Kirby J considered was on him. A reading of Gleeson CJ and Priestley JA's judgments make clear their Honours considered that the App had a persuasive onus, i.e., on the balance of probabilities. Kirby P appears to have considered that it was an "evidentiary or forensic" onus, although some of His Honour's language might be thought to imply that the appellant in that case bore the persuasive onus; (see the discussion at pp. 589, 590 and 594).
Mason v Tritton, it must be noted, did not deal specifically with the construction and operation of s.211 of the NTA, but with what the common law required in order to establish a native title right.
Derschaw and Others v Sutton (1996) 17 WAR 419 is a case where the Full Court of the Supreme Court of Western Australia considered the issue of an asserted native title right to fish in the context of a state fisheries prosecution. By majority, the Full Court held that the defendants to the prosecution failed to adduce evidence that in any way established that they were a biological descendant of an indigenous clan or group who had exercised a right to fish in accordance with traditional laws and customs in the relevant area, immediately before the Crown claimed sovereignty over the area. It was also held that the defendants had 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. The Full Court in giving its judgment addressed the issue of what onus it considered lay on the defendants, in relation to the raising of a native title right to fish.
Franklyn J, who wrote the majority judgment, made clear that there was only an evidentiary onus on the defendants, and they were not required to establish the asserted native title right on the balance of probabilities. His Honour said: "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."
Franklyn J's view on the issue of the onus appears to be more in line with that of Kirby P from Mason v Tritton, rather than that of Gleeson CJ and Priestley JA.
Underwood J of the Tasmanian Supreme Court in Dillon v Davies (1998) 145 FLR 111 considered an appeal from a magistrate's conviction for breaches of the Tasmanian Sea Fisheries Regulation. The charges under consideration related to the App taking 81 undersize abalone from certain Tasmanian waters. Part of the argument advanced by the applicant in that case was that his conduct was not unlawful because of his native title rights and interests under the NTA.
The magistrate held that the requirements of s.211(1) of the NTA were fulfilled, and then considered s.211(2)(a) and (b). Underwood J considered that the magistrate had correctly held that it was not necessary for the applicant to establish a defence on the balance of probabilities and although the applicant carried an evidentiary burden, once that had been satisfied, the onus rested on the prosecution to establish guilt beyond reasonable doubt. His Honour noted that the magistrate having referred to Kirby P in Mason v Tritton, had correctly held that the applicant's conduct in fishing for abalone must have been done in the exercise of traditional laws and customs and that there must have been an uninterrupted observance of those traditional laws and customs which, could be traced from the applicant back to his ancestors at a time immediately before white settlement.
The magistrate in that case considered that there was a lack of evidence regarding traditional laws and customs having a bearing on a right to take abalone. The magistrate held that that there was no evidence that the taking of the abalone was in the exercise of any traditional law and custom.
Underwood J recorded in his judgment that the applicant in that case did not claim that there was evidence of laws and customs governing the taking of abalone, such as who may exercise the right to take the fish, or what, if any, restrictions are imposed by the traditional law on that right to fish. The applicant in that case argued that the traditional activity, that is the fishing for abalone, was itself a traditional law and custom.
Underwood J, in dismissing the appeal, noted that s.223(1) of the NTA, referred to rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples.
His Honour considered that the magistrate was correct when she ruled that there was no evidence that the taking of abalone was in the exercise of a right possessed under a traditional law and custom. His Honour considered that there was evidence that since time immemorial, fishing for abalone had been an aspect of Aboriginal life, but that was insufficient to establish native title as defined by s.223(1) of the NTA. His Honour noted that the evidence established no more than that the taking of abalone was something that had been done by Aborigines for a very long time. His Honour considered that such evidence alone is insufficient to discharge the evidentiary onus that the applicant carried to cast onto the prosecution the burden of establishing beyond reasonable doubt that he did not take the abalone in the exercise of his native title right. In coming to that view His Honour applied the principles discussed in Mabo v Queensland (No2) (1992) 175 CLR 1.
In The Appeals of Scott Rigby and Ors, unreported decision of the NSW District Court 17 December 2007, Chief Judge Blanch considered a number of appeals from convictions by a magistrate for offences under the FMA. The Appellants in that case had relied upon s.211 of the NTA. In that case His Honour relied upon both the decision in Mason v Triton but also on certain observations in the joint judgment of, Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 about the approach to be taken to s.223 of the NTA. In particular His Honour referred to the following paragraph in that judgment: [46] As the claimants submitted, "traditional" is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, "traditional" carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are "traditional" laws and customs.
Chief Judge Blanch considered the issue of the onus of proof in relation to the reliance on s.211 of the NTA and considered that Mason v Tritton had approved the approach of Young J at first instance, which was to the effect that the person seeking to establish a native title right or interest had the persuasive burden on the balance of probabilities. His Honour referred to Derschaw v Sutton, which I discussed earlier, and expressed the opinion that the evidence before him was such that even if the onus was only an evidentiary onus, the appellants in that case had not discharged it. His Honour was of the opinion that in that case the evidence concerning "the genealogy" of the appellants was such that there was "a very significant gap and none of the appellants" in that case could "show biological descent from an identifiable group existing in the south coast at the time of sovereignty". His Honour was also of the opinion that there was "no evidence of a recognisable system of rules observed by an identifiable group at the time of sovereignty" when it came to fishing.
In Dudley & Ors v Department of Primary Industries [2018] SASCFC 23 the Full Court of the South Australian Supreme Court heard an appeal in relation to the conviction of 5 men for offences under the Fisheries Management Act (SA) in relation to allegations of the 5 Aboriginal Accused being in joint possession of 370 green lip abalone of which 188 were alleged to be undersized. The total catch was said to weigh 43.495 kilograms. The magistrate had held that s.211 of the NTA did not apply to the facts of the case. On appeal to Nicholson J in the Supreme Court, His Honour had dismissed the conviction appeals.
While the Full Court noted at [71] that "it was common ground that the defendants bore an evidential burden in respect of a defence under s.211 of the NTA", their Honours also reviewed the authorities which had considered that issue, being the authorities that I have discussed earlier. In rejecting the argument that the principles in Mason v Tritton; Derschaw v Sutton and Dillon v Davies were not to be followed, their Honours considered those authorities were correctly decided and applied to the case they were considering. In doing so their Honours said: [103] The first is that to the extent that the defendants seek to challenge the approach taken in the three decisions we have surveyed (namely Mason v Tritton, Derschaw v Sutton and Dillon v Davies) we would not accede to their submission. The first two are decisions of intermediate appellate courts and so should be followed by this Court unless plainly wrong.[44] We are not satisfied that they are plainly wrong; to the contrary, we agree with the approach and reasoning of the Courts in those decisions. As for Dillon v Davies, while a decision of a single judge, we consider that Underwood J's reasoning and approach is in conformity with that of the Courts in the earlier two decisions, and at most a modest and logical extension of the reasoning and approach in those decisions. Again, we agree with the approach and reasons of Underwood J.
In terms of what was required to discharge the evidentiary onus on the defendant, in reference to the relevant authorities their Honours said at [104]: As these authorities make plain ………………………, the law's recognition of native title rights is confined to rights forming part of a system of traditional rules or laws. This point was reinforced by the High Court in both Commonwealth v Yarmirr and Yorta Yorta v Victoria. As Gleeson CJ, Gummow and Hayne JJ explained in the latter case, 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.
In further explanation as to what is required in order to satisfy the evidentiary onus that a defendant in a prosecution has, if they seek to rely upon s.211 of the NTA their Honours said: [105] 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. [106] None of the above is intended to suggest that detail and precision, let alone comprehensive detail and precision, will be required. But evidence that identifies some basic content of the right, and its context within a system of rules observed by the relevant people or community, will be necessary.
The importance of evidence of traditional engagement in a particular activity was addressed in [110] where their Honours said: Evidence of traditional engagement in particular activity will be relevant to establishing the existence of a right (with some basic content, and as part of a system of rules), but it will not generally suffice to establish this right. We say that it will "not generally" suffice, because it may be that if the evidence is detailed enough, and wide-ranging enough, then appropriate inferences as to the content of the right might be drawn. But much more would be required than the limited evidence of that nature that was adduced in this case. In this case the evidence did not permit any inference as to meaningful limitations, or broad parameters, of the claimed right, let alone the system of rules of which it formed part.
Their Honours addressed the evidence in the case under consideration at [118] and [119] in the following terms: As the authorities make plain, the existence of a native title right to fish requires more than this. More is required in order to pass from mere evidence of a tradition of engaging in a particular activity to evidence capable of sustaining the existence of a native title right to engage in that activity - particularly when the activity in question is as commonplace as fishing in a coastal community. It requires evidence of a right that exists as part of a recognised system of rules. This will ordinarily require some evidence as to not only the content of the claimed right, but also its place in a system of rules. The evidence in this case was confined to evidence from which only the most general of inferences might be drawn as to the basic content of the asserted right. It was insufficient, in our view, to establish the existence of a right extending to the spontaneous taking of large quantities of abalone, let alone the existence of such a right as part of a system of rules observed by the Narungga people. While evidence of historical engagement in the activity will in some cases enable some identification and definition of an asserted right and provide some evidence of its place in a system of rights, the evidence in this case was too general in nature. It simply did not address the matters required to make out a defence under s 211 of the Native Title Act, and hence was not sufficient to discharge the defendants' evidential burden to raise that defence.
This issue was again considered by the Full Court of the South Australian Supreme Court in Wanganeen & Anor v Dietman; Shaw v Dietman [2021] SASFC 25. That case involved an appeal from a magistrate who had convicted the three appellants of offences under the South Australian Fisheries Management (General) Regulations 2007. In the proceedings before the magistrate the appellants had conceded that they bore the evidentiary burden of proof in relation to the raising of a so-called Native Title Defence. The prosecution had conceded before the magistrate that it bore the persuasive burden of proof on that issue if the appellants (defendants) had discharged the evidentiary burden of proof which was on them; See [79].
The Full Court considered that the conditions or elements for the operation of section 211(2) of the NTA upon the relevant South Australian Fisheries regulations, where an Aboriginal person was found in custody of abalone, were as follows: 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. [69].
The South Australian Full Court in that case considered at [70]: 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.
I do not consider it is necessary to further discuss the facts in Wanganeen. The appellants in that case were successful for a variety of reasons, and the proceedings were remitted for a new trial before a magistrate. Those reasons did not, in the main, raise the application of s.211 of the NTA.
While the appeal was conducted on the basis that the Full Court assumed that the appellants had an evidentiary burden in relation to the application of s.211 of the NTA, the Court left open the issue as to whether the appellants or the prosecution had the persuasive onus in that regard; (see [211] to [245]).
The Resp's submission that the App had the persuasive burden to prove on the balance of probabilities that his conduct fell within s.211(2) of the NTA such that the regulatory provisions of the FMA were "suspended", in so far as his conduct was concerned, relied to a significant degree on principles derived from Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. Attention was specifically drawn to passages in the joint judgment of Dawson, Toohey and Gaudron JJ, a judgment with whom Brennan J, as His Honour then was, and Deane J agreed. In particular the Resp relied upon the following passages in the joint judgment: 9. 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. See Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, at pp 519-520. The distinction does not depend on the rules of formal logic: Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136, at p 147. 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": Director of Public Prosecutions v. United Telecasters Sydney Ltd. [1990] HCA 5; (1990) 64 ALJR 181, at p 183; [1990] HCA 5; 91 ALR 1, at p 6. The intention may be discerned from express words or by implication. See Reg. v. Edwards (1975) QB 27 and Reg. v. Hunt (1987) AC 352. 12. Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined "upon considerations of substance and not of form": Dowling v. Bowie, at p 140. 13. One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring and Lighterage Co. Ltd. v. Jacobsen [1945] HCA 22; (1945) 70 CLR 635, per Dixon J. at p 644. Such is ordinarily the case where, in the terms used in Reg. v. Edwards, at p 40, there is a prohibition on 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". See Reg. v. Hunt, at p 375, where Lord Griffiths considered the statement from Reg. v. Edwards "an excellent guide to construction". If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.
The Resp argued that in conformity with the principles set out above from Chugg, s.211(2) of the NTA creates a statutory exception that arises from a matter entirely distinct from the subject matter of the relevant offences, and that the provision concerned matters "peculiarly within the knowledge of the defendant" (Resp's written submissions at [38] and [39].) The Resp also submitted that the person relying on s.211(2) of the NTA "would be the party best placed to assess the critical evidence necessary to establish, native title, and the appropriate exercise of that right consistent with traditional laws or customs"; (51 Resp's written submissions)

Decision as to where the onus lies under s.211(2) of the NTA.

In my opinion, there is an onus on a defendant to a criminal prosecution who seeks to rely upon s211(2) of the NTA, to bring his or her conduct within that provision, but it is only an evidentiary onus, and not a persuasive one. My reasons for coming to that opinion are as follows:
My review of the relevant case law concerning this issue which I have set out in this judgment, much of which consists of decisions of superior interstate courts, shows that those courts have held that there is an onus on the defendants in criminal prosecutions who seek to call in aid s.211(2) of the NTA, and it is in the nature of an evidentiary onus. No superior court has held that a defendant who seeks to rely upon s.211(2) of the NTA to suspend the operation of a State regulatory scheme from that defendant's conduct, has the persuasive onus on the balance of probabilities.
With respect to former Chief Judge Blanch, I do not consider that the majority in Mason v Tritton were dealing with s.211(2) of the NTA, but solely with the common law concerning proof of native title. I do not consider that the views expressed in Mason, on the issue of onus, bind me in relation to s.211(2).
The judgments of interstate intermediate appellate courts, while arguably, not strictly binding on me, are clearly persuasive and should not be followed by me only when I am satisfied that they are clearly wrong. In this instance, I am not so satisfied. See Australian Securities Commission v Marlborough Gold Mines Ltd [1993] 177 CLR 485 at p 492.
I do not accept the Resp's submissions, to the extent that the submissions rely upon the principles discussed by the High Court in Chugg, for the following reasons. Those submissions, in my opinion, overlook the fact that ultimately, the determination of where the onus lies, is a matter of statutory construction of the provision under consideration. I referred earlier to the fact that the NTA has a beneficial purpose, a purpose which is to benefit Aboriginal and Torres Strait Islander peoples. There are authoritative statements which I referred to earlier, that indicate that courts should be alive to construing the NTA in a way so as to give effect to the beneficial purpose of the legislation, even if that involves giving a strained interpretation to a provision.
I also do not accept that "it can be expected that a party relying on the application of s.211 would be the party best placed to assess the critical evidence necessary to establish native title, and the appropriate exercise of that right consistent with traditional laws or customs". That submission ignores that in criminal proceedings where s.211(2) of the NTA is raised, the prosecuting authority will be an arm of the executive government of either the Commonwealth, a State or a Territory. That the relevant executive government, through its agencies, will almost invariably have far greater resources at its disposal than the individual Aboriginal or Torres Strait Islander person who is being prosecuted. The submissions also fail to acknowledge that as a consequence of the conduct of various executive governments over time, including the Imperial and Colonial administrations that governed Australia prior to Federation, the ability of an individual Aboriginal or Torres Strait Islander to establish that their conduct involved an exercise or the enjoyment of a native title, right or interest, has been made very difficult. It cannot be doubted that the Aboriginal and Torres Strait Islander culture is essentially an oral one. Nor can it really be doubted that up until the first Land Rights legislation in 1976 and probably until the decision of the High Court in Mabo No 2, Aboriginal and Torres Strait Islander peoples, would have had little to no expectation that State and Federal Courts would acknowledge or enforce native title rights or interests. In such circumstances, it cannot be said that an Aboriginal or Torres Strait Islander person would be the party best placed to assess the critical evidence necessary to establish native title.
I also do not accept the App's submission that he bore no onus in relation to bringing his conduct within s.211(2) of the NTA. I do so essentially for two reasons. The first is because of the fact that the decided cases I reviewed earlier, essentially are consistent in holding that an evidentiary onus lies on the defendant in criminal proceedings, and I am not persuaded those cases are wrongly decided. I also consider that to hold that there was no onus on the defendant would effectively mean that in every prosecution, even if the issue was not raised by a defendant, the prosecutor would be required to prove beyond reasonable doubt that s.211(2) of the NTA had no application. There is nothing s.211(2) of the NTA that would warrant such a construction in my opinion.
I also consider that the High Court's approach to the issue of constitutional facts as discussed in Clubb v Edwards (2019) 267 CLR 171, is consistent with there being an evidentiary onus on a person who seeks to rely upon s.211(2) of the NTA to suspend the provisions containing the regulatory scheme in the FMA. The appellant in that case was prosecuted under s.185 D of the Victorian Public Health and Wellbeing Act 2008. The appellant had stood outside the entrance to an abortion clinic and handed a young couple entering the clinic a pamphlet which offered counselling and assistance to enable pregnancy to proceed to birth. She was charged with engaging in prohibited behaviour while within a safe access zone, contrary to s.185D of the Public Health and Wellbeing Act. The appellant in that case argued that s.185 D of the Public Health Act was invalid as infringing the implied constitutional freedom of political communication. The appellant had given no evidence in the proceedings that her communications involved political communication.
A number of the judges made some relevant observations concerning the issue of constitutional facts. Gageler J said the following at [135]: The practice of the High Court has fairly consistently been to decline to answer a constitutional question unless there has been shown to exist a state of facts which has made answering the question necessary in order to determine a right or liability in issue in the matter in which its original or appellate jurisdiction has been invoked.
His Honour went further at [152] and [153] and said: [152] 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[104]. 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[105] 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[106] 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. [153] 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. (My emphasis).
Gordon J said something similar at [347] and [348] when Her Honour said: Constitutional facts, however, do not lend themselves to ordinary notions of onus and burden of proof[350]. 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.
Edelman J also said at [442]: 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.
The practical onus that Gageler J speaks of in Clubb, and which appears to be embraced by Gordon and Edelman JJ, when it comes to considering constitutional facts, is in my opinion, somewhat analogous with the concept of an evidentiary onus, lying on the party that seeks to argue that the scope of a state regulatory scheme is suspended under s.211 of the NTA.
In my opinion, once a defendant to a criminal prosecution has discharged the evidentiary burden that is on him in relation to the matters required to bring his or her conduct within the terms of s.211(2) of the NTA, the prosecution has the persuasive burden to establish beyond reasonable doubt that his or her conduct was not in exercise or enjoyment of a native title right or interest or was not for the purpose of satisfying his or her personal , domestic or non-commercial needs.
The evidentiary burden on a defendant in a criminal proceeding that seeks to call in aid s.211(2) of the NTA involves there being some evidence in the proceedings of the matters conveniently summarised earlier from Wanganeen & Anor v Dietman; Shaw v Dietman. My earlier review of the authorities establishes that it is not enough to show that fishing was engaged in by Aboriginal people at a particular location before the British Government declared sovereignty over that area, and that they have done so since that time. There must be some evidence of the content of the right or custom which is said to have been exercised.

Did the App here discharge the evidentiary onus that was on him in relation to his reliance on s.211(2) of the NTA in relation to the 3 possession charges?

In this case the App denied that he had caught the abalone that he was alleged to have been in joint possession of. He, therefore, gave no evidence that he caught or gathered the abalone the subject of those charges pursuant to the exercise or enjoyment of his native title rights and interests. That is sufficient, in my opinion, to dispose of the argument in relation to the reliance upon s.211(2) of the NTA in defence of the three possession charges.
Even if one considers that the evidence the App gave about his catching of other abalone not the subject of the possession charges, should be somehow transferred to the abalone he claimed he did not catch, gather or possess, which is what is the subject of the possession charges, the evidence adduced in his case, in my opinion, amounted to no more than that Aboriginal people have traditionally, since before the British declared sovereignty over NSW, up until the present time, caught abalone at the location concerned. There was no evidence as to the content of the right or interest asserted, such as who may fish, how many fish may be caught, what sized fish may be caught. No particulars of the nature of the right to fish or gather fish was given in the App's evidence, or the evidence of Ms Parsons, or to my mind in the evidence of Dr Quoc. The evidence essentially was to the effect of, we have always lived by the coast and fished as we liked; there were and are no rules, we took or fished for whatever we wanted, it was natural to us.
For the reasons given by Gleeson CJ in Mason v Tritton, because of the nature of fishing, there is a need for there to be some evidence of the content of the right to fish, the proof of the fact fishing has always occurred, does not establish on its own, even to the evidentiary burden level, that the fishing was done in exercise or enjoyment of a native title, right or interest. There must be some evidence that the right to fish was part of a recognised system of rules. There was no such evidence adduced before the Local Court.
Having reached the conclusion I have on this part of the case, I do not consider it is necessary to deal with the parties' submissions that were made about the meaning of the term "non-commercial communal needs" in s211(2) of the NTA.

The Appellant's argument that he "laboured under an honest and reasonable mistake of fact" in relation to the possession charges

The Appellant argued that what rights and interests he possessed under traditional laws and customs is a question of fact. That the App caught and possessed the abalone the subject of the possession charges under a mistake of fact being, as I understand the argument, he had an honest and reasonable belief that he was the holder of native title rights, which include the right to access and take resources from the land and resources for any purpose; [33] of the App's written submissions. The App calls in aid the decision in Proudman v Dayman (1941) 67 CLR 536 in that regard.
Leaving aside for the moment the issue of whether a mistake about whether the App was the holder of a native title right or interest is a mistake of fact, or a mistake of law, there is, in my opinion, no substance in this argument of the App. Where an accused seeks to raise the Proudman v Dayman exculpation ground, the accused has the evidentiary burden to adduce evidence which raises his honest and reasonable mistake of fact, and if that is done, the prosecution must establish beyond reasonable doubt that the Accused did not act under an honest and reasonable mistake; See the discussion of CTM v R (2008) 236 CLR 440 in Criminal Offences in Australia, 5th Edition, P. Fairall and M. Barrett at pp. 75 -77.
As I have stressed, the App's evidence before the Local Court was that he did not catch, gather or possess the abalone the subject of the possession charges. It must follow that there is no evidence that the App caught, gathered or possessed the abalone that is the subject of the possession charges under a mistake that he believed he had a native title right to do so. This argument of the App, in my opinion, lacks an evidentiary foundation and fails for that reason.
For completeness, I note that it has been said in the authorities, whether a mistake is a mistake of fact, a mistake of law or a mixed mistake of fact and law, is often not an easy issue to determine. While, for the reasons I gave in the preceding paragraph, it is strictly unnecessary for me to decide this issue, I express the tentative opinion that a mistake about whether a person was exercising a native title right or interest to engage in fishing or gathering that falls within s.211(2) of the NTA is a question of mixed fact and law. If that conclusion is correct, it would be usually described as a mistake of fact; see Dixon J in Thomas v King (1937) 59 CLR 279 cited in Ostrowski v Palmer (2018) CLR 493 at [87].

The App's argument that in relation to the 3 possession charges he had a claim of right in relation to the abalone the subject of those charges

The App submitted that in the alternative to his reliance on s.211 of the NTA, he relied upon "an honestly held claim of right of the kind referred to in R v Langham 36 SASR 48"; [34] App's written submissions. The submission was not in any way developed by counsel for the App, either in the written submissions or orally.
R v Langham was an appeal against conviction for armed robbery. The essential issue on the appeal was the correctness of the trial judge's directions about a claim of right raised by the appellant in that case. Two of the judges, King CJ and Johnston J, in the Full Court of the South Australian Supreme Court, considered that the directions were wrong, and directed that there not be a new trial.
Both King CJ and Johnston J considered, in the context of an armed robbery charge, where stealing is an integral part of the concept of robbery, that a claim of right arises if there is evidence of a genuine belief in a legal entitlement to the property taken. It was not necessary that the belief be reasonable, and once raised, it was for the prosecution to establish beyond reasonable doubt that the accused had no genuine belief in a legal entitlement to the property taken.
The App's submissions did not explain how the concept of claim of right discussed in R v Langham, which was in the context of an armed robbery charge, applied to the facts of the current case. There was no element of the regulatory offences here which involved the concept of stealing, or fraud or dishonesty.
In NSW what is necessary to raise a claim of right was outlined in R v Fuge (2001) 123 A Crim R 310. The concept of claim of right was considered in that case in the context of a conviction appeal where the appellant had been convicted of being an accessory before the fact to an offence of assault with intent to rob while armed with an offensive weapon. Again, the issue was considered in the context of an offence involving an intent to rob. Wood CJ at Common Law set out the requirements for raising a claim of right in that context and they are, relevantly, as follows: 1. the claim of right must be one that involves a belief as to the right to property or money in the hands of another: 2. the claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not: 3. while the belief does not have to be reasonable, a colourable pretence is insufficient: 4. the belief must be one of a legal entitlement to the property and not simply a moral entitlement: 5. the existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it: 6. It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.
While not relied upon by the App here, the concept of a claim of right in the context of a customary claim has been considered in Walder v Hensler (1987) 163 CLR 561. In that case the appellant had been convicted for keeping fauna, being Plain Turkeys, without an authority under s.54 of the Queensland Fauna Conservation Act. It was accepted that the appellant in that case, being an Aboriginal person, had for some time, once or twice a month gone out from Mount Isa in the bush for "bush tucker". That Aboriginal law provided that he should not kill more than is needed for food for his family, and that he may capture a young bird for a pet, but when it grew up it had to be let go as it belonged to the bush. The appellant in that case gave evidence that he conducted himself in accordance with Aboriginal law governing the keeping of Plain Turkeys. The appellant in that case was found to be in possession of a Plain Turkey carcass and a turkey chick and was charged, as I say, with keeping fauna without a relevant authority. It was accepted in the lower court that the appellant had taken the turkeys as a traditional food source and believed he was doing nothing wrong, and that his keeping of the carcass and the chick were consistent with his honest belief, or claim, that the appellant was entitled to do so.
The case, to a significant degree, depended upon the construction of s.22 of the Criminal Code of Queensland which codified the common law concept of claim of right. The judges in the High Court had differing views about the construction of that provision, but in the course of a number of the judgments, observations were made about the common law notion of a claim of right and its application to criminal proceedings.
Brennan J, as His Honour then was, said at [17] of His Honour's judgment: At common law, the defence is applicable to any offence the mental element of which is negated by the existence of an honest claim of right to do the prohibited act or make the prohibited omission.
Deane J said at [7] of His Honour's judgment: In the ordinary case where knowledge of the criminal law is assumed however, a defence of claim of right will not be well-founded unless what was claimed or believed would, if it were the fact, have negatived an element of the actual offence or provided a good defence to it.
Dawson J said at [9] of His Honour's judgment: It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law.
In my opinion, the suggested argument concerning a claim of right in relation to the possession charges fails for two reasons. The App simply gave no evidence that he had a belief in a claim of right in relation to the abalone that is the subject of the 3 possession charges. At the risk of being unduly repetitious, he gave no evidence that he caught, gathered or possessed those abalone because he believed he had a lawful claim to them. His evidence was that he did not catch, gather or possess the abalone the subject of those charges. In those circumstances, no issue of a claim of right arose in the proceedings.
The second reason is that even if the evidence supported a claim of right to fish, gather or possess the abalone the subject of the possession charges, there is no element of the offences that the claim of right related to. The offences simply required proof of possession of particular fish.
It follows that for all of the above reasons, the conviction appeal, in relation to the first 3 charges, is dismissed

The remaining charges

Charge 4 (CAN 5) is an allegation that the App, without reasonable excuse, obstructed Fisheries Officers McTavish and Donaldson by refusing to allow them to search his bag when requested to do so as he was walking on the rocky part of Oakey Beach and on the track from the beach to the carpark.
The charge is brought under s.247(1) of the FMA which provides as follows: A person who, without reasonable excuse, resists or obstructs a fisheries officer in the exercise of the officer's functions under this Act is guilty of an offence.
The obstruction allegation is based upon what appears from my earlier review of the evidence, to be the uncontested evidence that when first asked by the Fisheries Officers to allow them to inspect his backpack, the App refused to do so, but a little later in time permitted that to occur.
The Resp in its written submissions concerning this charge particularised the function that the officers were engaged in for the purposes of this charge as being that set out in s.250 of the FMA. Section 250 of the FMA provides as follows: A fisheries officer who has reason to believe that there is in any premises anything connected with a fisheries offence may: (a) enter the premises, and (b) search the premises for any such thing, and (c) break open and search any container in the premises that the officer has reason to believe contains any such thing.
Premises is defined in s.4 of the FMA as follows: "premises" includes any structure, building or place, whether built on or not.
At the time that the App was first asked to allow the officers to inspect his backpack, he was walking on a rocky aspect of the northern end of Oaky Beach. To construe that location as being within the definition of "premises", in my opinion, requires a very strained construction of that definition.
The Resp relied upon a decision of Master Harrison , (who is not Justice I Harrison, but is now an Associate Justice of the Supreme Court), in NSW Fisheries v Payanouvoung [2004] NSWSC 1092, where the Master held that "premises" under the FMA included " a rock platform". The Master concluded in [12] of her judgment that: Section 4 of the Act defines "premises" as "including any structure, building or place, whether built on or not". The definition of "premises" does not distinguish between public or private premises. The definition of premises is an inclusive one. It includes any structure, any building or any place. It would include premises that are either private or public or part private and part public. It is a very wide definition and includes "any place". The word "place" is not defined in s 4 of the Act. It would include a rock platform.
I accept that the definition of premises is a wide one, but the affect of Master Harrison's construction is that anywhere in NSW falls within the definition of "premises". If the legislature had wanted to provide that the function in s.250 of the FMA could be exercised "anywhere" it could easily have done so, but it chose to link the function to a specific definition. I do not consider I am bound to follow Master Harrison's interpretation of the term "premises", and with respect to her, I don't propose to.
I note in that regard that this concept of authorising Fisheries Officers to perform certain duties or functions "anywhere" is one that the legislature in fact took up in s.255 of the FMA which provides: A fisheries officer may examine any fishing gear or other equipment that the officer finds anywhere if the officer has reason to believe that the gear or equipment is being, has been or will be used for fishing in waters to which this Act applies. (My emphasis).
The definition of premises, in my opinion, concerns structures of any type whether public or private, but does not include a rocky part of a beach or a beach track. The genus of the definition of premises in the FMA, is to my mind, a structure of some type, although it may be a private or public structure, and it does not need to be built, and could be a natural structure such as a cave.
I do not consider that s.250 of the FMA applied to the circumstances of this case, and the function contained in s.250 of the FMA is the only function relied upon to ground the 4th charge.
Even if I am wrong about the meaning of "premises" and the application of that term to the location here, I am of the opinion that what happened here was not a search of premises. What in fact the officers sought to do was force the App to stop and allow them to search a back pack he was carrying. To my mind, such conduct was not authorised under s.250 of the FMA. A search of premises under s.250 of the FMA does not entitle the Fisheries Officers to force a person to stop, and hand over a back pack that they are carrying to allow the officers to search it. There is no power in s.250 of the FMA to require a person to stop or to hand over anything, or to force someone to submit to a search.
I note that under s.255 of the FMA the following power is provided: A fisheries officer may examine any fishing gear or other equipment that the officer finds anywhere if the officer has reason to believe that the gear or equipment is being, has been or will be used for fishing in waters to which this Act applies.
In my opinion, the power in s.255 does not entitle the fisheries officers to require a person to stop and allow inspection of a backpack that they are carrying. Such a circumstance does not amount to an officer "finding" the gear and equipment, even accepting, without deciding, that a backpack falls within the definition of fishing gear in s.4 of the FMA. It seems to me highly doubtful that a backpack does fall within that definition.
I am, therefore, satisfied that the appeal in relation to the conviction of the 4th charge should be upheld.
The 5th charge (CAN 6) is a charge that the App "abused" a fisheries officer being an offence under s.247(2) of the FMA. Section 247(2) of the FMA relevantly provides: A person who abuses a fisheries officer, is guilty of an offence.
The term "abuse" is not defined in the FMA. It is an ordinary English word, and in my opinion, in this statutory context, carries its ordinary English meaning. As a verb, the term according to the Macquarie Dictionary, means to speak insultingly to.
There was no dispute about the content of the language the App directed at the Fisheries Officers on 29 December 2017. I set out the nature of that language when I reviewed the evidence earlier. There can be no doubt that the language constituted abuse of the officers to whom it was directed. The App's appeal against conviction on that charge is dismissed for those reasons.
The 6th charge (CAN 7) is a charge of the App failing to comply with requests by Fisheries Officers Donaldson and Hollywood to state his name and address. That is a charge brought under s.258 of the FMA which provides that a Fisheries Officer may require: a person whom the officer has reason to believe is engaged in commercial fishing activities or is committing, has committed or is about to commit a fisheries offence to state the person's name and address.
Section 258(2) creates an offence of failing to comply with such a requirement. Section 58 (3) provides: A person fails to comply with a requirement to provide information (including a requirement to state a name and address) made by a fisheries officer under this section if the person fails to provide that information immediately or within such period as the fisheries officer may allow.
There was no challenge on the appeal to the legality of the officer's demands that the App state his name and address. It is clear on all the evidence that a number of the Officers clearly knew the App's name. To ask someone to state their name, when it is known, may in some circumstances, in my opinion, amount to an improper exercise of the power to require the name to be stated, and in some circumstances might provide a reasonable excuse for not providing a name. There was no challenge, however, to the evidence that the officers at that time did not know the App's address.
No argument was addressed on the Appeal that the officers did not have the belief set out in s.258(1) of the FMA which entitled the officers to require the App to state his name and address. My review of the evidence earlier satisfies me that the App heard the requests that he state his name and address and chose not to. Clearly, though, part of the reason he did not state his name was that he was aware that the officers concerned knew his name.
For these reasons I am satisfied that the App committed an offence under s.258(1) of the FMA when he failed to provide his name and address to the officers when he was called upon to do so.

Orders

The result of the conviction appeal is as follows:
The appeal concerning the convictions on the offences contained in CANS 1,2,3, 6 and 7 is dismissed. The conviction appeal in relation to the offence contained in CAN 5 is allowed and I set aside the conviction for the offence of obstruction of Fisheries Officers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2022

Fisheries Management Act 1993(Cth)

Native Title Act 1993(Cth)ss 211, 223

Fisheries Management Act 1994(NSW)ss 37, 104, 247(1), 250, 255, 258

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