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District Court 1 July 2022

Carriage v NSW Department of Planning, Industry & Environment

[2022] NSWDC 283

Other
APPEAL JOINT POSSESSION

Citation: Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283
Court: District Court of New South Wales
Date: 1 July 2022
Judge(s): Buscombe DCJ

Background

The appellant, an Aboriginal man identifying as a member of the Walbunja people and part of the Yuin Nation, was convicted in the Local Court of six offences under the Fisheries Management Act 1994 (NSW) and its regulations. The convictions arose from events on 29 December 2017 at Oaky Beach, South Durras, where fisheries officers observed three divers collecting abalone and later located two hessian bags containing 161 shucked abalone meats and 47 undersized abalone shells concealed in a cave-like rock formation.

The appellant denied possessing the abalone found by the officers, claiming he had separately caught and hidden his own catch in a different location and retrieved it later that night. He also argued that, as a native title holder, his conduct was protected by section 211 of the Native Title Act 1993 (Cth), which can suspend the operation of state regulatory laws where Aboriginal persons engage in particular activities in exercise of their native title rights and interests.

On appeal to the District Court, the proceedings were conducted as a rehearing under section 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW), with no fresh evidence called. The court was required to assess whether the magistrate should have been satisfied beyond reasonable doubt as to the appellant's guilt on each charge.

Legal Issues

  • Whether the prosecution proved beyond reasonable doubt that the appellant was in joint possession of the abalone found by fisheries officers.
  • Whether section 211(2) of the Native Title Act operated to suspend the relevant provisions of the Fisheries Management Act in respect of the appellant's conduct.
  • What onus of proof, if any, lies on a defendant seeking to rely on section 211(2) of the Native Title Act.
  • Whether the appellant's evidence established an honest and reasonable mistake of fact, or a claim of right, sufficient to exculpate him.
  • Whether the fisheries officers had power under the Fisheries Management Act to require the appellant to stop and submit his backpack to inspection.
  • Whether the appellant's language toward the fisheries officers constituted "abuse" under section 247(2) of the Fisheries Management Act.
  • Whether the appellant had a reasonable excuse for failing to state his name and address when required under section 258 of the Fisheries Management Act.

Decision

Issue 1: Joint possession of the abalone

The court rejected the appellant's account that he had caught separate abalone and stored it elsewhere, finding his version implausible and inconsistent with objective evidence, including video footage (at [161]). The court also rejected Adrian Connolly as a reliable witness, noting that he had initially insisted on using a hessian bag when diving but was forced to concede, after viewing video footage, that all divers had used mesh bags (at [149]). The court found that the combined observations of fisheries officers, including the appellant being seen near the cave with a laden hessian bag, the presence of an abalone iron in his backpack, and the manner in which the catch was concealed, were sufficient to establish beyond reasonable doubt that the appellant jointly possessed the abalone with the other men (at [163]).

Issue 2: The section 211 Native Title Act defence, and the onus of proof

The court held that a defendant relying on section 211(2) of the Native Title Act bears only an evidentiary burden, not a persuasive burden, to bring their conduct within that provision (at [225]). Once that evidentiary burden is discharged, the prosecution must prove beyond reasonable doubt that the conduct was not in exercise of a native title right or was not for the purpose of satisfying personal, domestic or non-commercial communal needs (at [238]). The court declined to follow the submission that the persuasive burden lay on the appellant, reasoning that the Native Title Act has a beneficial and remedial purpose and that prosecuting authorities possess far greater resources than individual Aboriginal defendants (at [229]-[230]).

However, the appellant's section 211(2) argument failed on the facts. Because he denied catching or possessing the abalone the subject of the charges, he gave no evidence that he gathered it in exercise of native title rights and interests (at [240]). Even if that difficulty were set aside, the evidence adduced amounted to no more than a showing that Aboriginal people had long fished at that location. There was no evidence of the content of the asserted right: who could fish, how many fish could be taken, or what sizes were permissible (at [241]-[242]). In the court's view, proof that fishing has always occurred is insufficient on its own, even at the evidentiary burden level, to establish that it was done in exercise of a native title right or interest (at [242]).

Issue 3: Mistake of fact and claim of right

The appellant's arguments based on an honest and reasonable mistake of fact (relying on Proudman v Dayman) and a claim of right both failed. Because the appellant denied possessing the relevant abalone, there was no evidentiary foundation for either argument: he could not have held a belief about the lawfulness of conduct he denied engaging in (at [246], [258]).

Issue 4: Obstruction charge (Charge 4)

The court allowed the appeal against conviction for obstructing fisheries officers by refusing bag inspection. The power relied upon by the prosecution was section 250 of the Fisheries Management Act, which authorises searches of "premises." The court held that the definition of "premises" does not extend to a rocky part of a beach or a beach track, declining to follow a contrary Supreme Court Master's decision (at [270]). Even if "premises" were construed more broadly, section 250 does not authorise officers to require a person to stop and hand over a backpack they are carrying for inspection; there is no such power in the provision (at [272]). The court also found that section 255 of the Act did not supply the necessary power on these facts (at [274]).

Issue 5: Abuse of fisheries officers (Charge 5)

The appeal on this charge was dismissed. The court found that the language the appellant directed at the officers, which was not in dispute, plainly constituted "abuse" within the ordinary meaning of that word as used in section 247(2) of the Fisheries Management Act (at [277]-[278]).

Issue 6: Failure to state name and address (Charge 6)

The appeal on this charge was also dismissed. The court was satisfied that the appellant heard the officers' requests to state his name and address and chose not to comply. While several officers knew the appellant's name, the evidence established that they did not know his address, and the appellant's awareness that officers knew his name did not amount to a reasonable excuse (at [281]-[283]).

Orders Made

  • The appeal against conviction on Charges 1, 2, 3, 5 (abuse), and 6 (name and address) is dismissed.
  • The appeal against conviction on Charge 4 (obstruction by refusing bag inspection) is allowed, and the conviction is set aside.

Key Takeaways

  • Under section 211(2) of the Native Title Act, a defendant in a criminal prosecution bears only an evidentiary burden to bring their conduct within the provision's terms. No superior court has imposed a persuasive burden on the balance of probabilities, and the beneficial and remedial purpose of the Native Title Act weighs against doing so (at [225]-[230]).

  • Discharging the evidentiary burden under section 211(2) requires more than evidence that Aboriginal people have historically fished at a particular location. There must be some evidence of the content of the asserted right or custom: for example, who may fish, what restrictions apply, and how the right is exercised (at [239]-[242]).

  • The District Court held that the definition of "premises" in the Fisheries Management Act does not extend to a rocky beach foreshore or a walking track, and that section 250 of that Act does not empower fisheries officers to require a person to stop and submit a carried backpack to inspection (at [270]-[272]).

  • A defendant who denies possessing the items the subject of a charge cannot simultaneously rely on a native title defence, a Proudman v Dayman mistake of fact, or a claim of right in relation to those same items, because there is no evidentiary foundation for such arguments (at [240], [246], [258]).

  • Ordinary, uncontested abusive language directed at fisheries officers in the course of their duties will satisfy the "abuse" element of section 247(2) of the Fisheries Management Act, applying the word's plain English meaning (at [277]-[278]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW) s 18(1)
- Fisheries Management Act 1994 (NSW) ss 37, 104, 247(1), 250, 255, 258
- Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) cl 94(1)
- Native Title Act 1993 (Cth) ss 211, 223

Cases
- Amanatidis (2001) 152 A Crim R 89
- Australian Securities Commission v Marlborough Gold Mines Ltd [1993] 177 CLR 485
- Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
- Clubb v Edwards (2019) 267 CLR 171
- Commonwealth v Yarmirr [2001] HCA 56
- CTM v R (2008) 236 CLR 440
- Darling Island Stevedoring and Lighterage Co Ltd v Jacobsen [1945] HCA 22
- Dowling v Bowie [1952] HCA 63
- Dillon v Davies (1998) 145 FLR 111
- Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5
- Dudley & Ors v department of Primary Industries [2018] SASCGC 23
- Lunney v DPP [2021] NSWCA 186
- Mabo v State of Queensland [No2] (1992) 175 CLR
- Mason v Tritton (1994) 54 NSWLR 572
- McNab v DPP [2021] NSWCA 298
- Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
- NSW Fisheries v Payanouvuong [2004] NSWSC 1092
- Ostrowski v Palmer (2018) CLR 493
- Proudman v Dayman (1941) 67 CLR 536
- R v Fuge (2001) 123 A Crim R 310
- R v Langham (1984) 36 SASR 48
- Reg v Edwards (1975) QB 27
- Reg v Hunt (1987) AC 352
- Regina v Juliano Delon unreported NSWCCA 6 October (1992)
- Scott Rigby and Ors unreported NSWDC 17 December (2007)
- Thomas v King (1937) 59 CLR 279
- Vines v Djordjevitch [1995] HCA 19
- Walder v Hensler (1987) 163 CLR 561
- Wanganeen & Anor v Dietman; Shaw v Dietman [2021] SASFC 25
- Western Australia v The Commonwealth (1995) 183 CLR 373
- Williams v Douglas (1949) 78 CLR 521