Introduction
On 10 September 2019 the two appellants were convicted under s 88(2) of the Nature Conservation Act 1992 (Qld) (‘Nature Conservation Act’) of hunting and killing a green sea turtle in waters off Mackay. This appeal against that conviction was made pursuant to s 222 of the Justices Act 1886 (Qld). The respondent in the matter was the Assistant Director of the Great Barrier Reef Marine Authority. The issue was whether the prosecution had disproved an honest claim of right under s 22 of the Criminal Code 1899 (Qld) (‘Criminal Code’).
Submissions
The appellants submitted that they were hunting in accordance with traditional methods of hunting and killed the turtle for a wedding. Although their families were from the Torres Strait, they had lived and hunted in the Mackay area for around 40 years. They submitted that they usually hunted pursuant to permits granted by the local elders’ council, however, although they sought a permit on the day in question, it was not granted.
Nevertheless, the appellants relied on Akiba v The Commonwealth [2013] HCA 33 (‘Akiba’) to argue that they were exercising native title rights that exist outside of s 211 of the Native Title Act 1993 (Cth) (NTA). As a result, they submitted that s 22 of the Criminal Code was not disproved as they had a legal belief of a right to take the turtle for ceremonial purposes.
The respondents submitted that the elements of an offence under s 88(2) of the Nature Conservation Act were proved at trial beyond a reasonable doubt. Relying on Scriven v Sargent (No 2) [2017] QCA 95, they submitted that the offence was not one related to property within the meaning of s 22 of the Criminal Code. They further submitted that even if s 22 applied, it required a belief there is a right recognised at law, which the appellants did not have.
Applicable Principles
Section 223 of the NTA provides that s 211 only applies to native title holders who hunt for limited purposes within their determination area. With respect to the argument based on Akiba raised by the appellants, the Court referred to Dudley and others v Department of Primary Industries [2018] SASFC 23 (‘Dudley’) in which the defendant also sought to rely on Akiba. It was held in that case that there is a critical distinction between evidence merely establishing a history of engaging in a particular activity and evidence establishing a native title right. Applying Dudley, His Honour held that in this case there was no evidence that there was a system of recognised rules which lead to the appellants’ right to hunt and kill the turtle.
The essence of a defence under s 22 of the Criminal Code is that the defendant holds an honest belief they are legally entitled to deal with the property that is the subject of the charge. There is an evidentiary burden on the defendant to raise the defence, but once raised it is on the prosecution to prove beyond reasonable doubt that it does not apply. Citing the High Court’s decision in Walden v Hensler [1987] HCA 54, His Honour characterised offences related to s 88 of the Nature Conservation Act as offences relating to property. This approach was also taken in Stevenson v Yasso [2006] QCA 40 and Mueller v Vigilante [2001] WASC 259. The question was whether the prosecution had discharged its burden of proof.
Decision
His Honour concluded that on the evidence, each of the appellants hunted without a permit because they were unable to obtain one. They knew they were not traditional owners of the waters near Murray Creek, and they knew they needed a permit/permission from the local elders, which they did not obtain. It was held, beyond reasonable doubt, that the appellants’ did not have an honest claim of right to take the turtle, and the prosecution had succeeded in disproving the defence. The appeal was dismissed and the orders of the Magistrates Court upheld.