Kourakis CJ, Kelly, Blue, Stanley and Doyle JJ
In this case, three Narungga men convicted of unauthorised possession of abalone under ss 72 and 74 of the Fisheries Management Act 2007 (SA) appealed to the Supreme Court of South Australia. The appellants argued that the abalone were taken within the scope of s 211 of the Native Title Act 1993 (Cth) (NTA). This was disputed by the respondent, the Director of Fisheries.
Background
The catch (of around 200 abalone in total) was seized on 11 March 2013. The appellants argued that the abalone was for a communal 21st birthday party which they attended on 16 March 2013. There were around 150-200 people in attendance. The Magistrate at first instance accepted that Narungga law and custom established a right to fish, extending to a right to collect large amounts of abalone to take to a family gathering. However, he found that in this case the abalone were taken for commercial purposes and as a result that the defence in s 211 of the NTA did not apply. In coming to this conclusion, the Magistrate considered that the ‘sheer number of abalone taken reflected non-personal or domestic use’, and that the appellant’s evidence lacked credibility. The Magistrate also appeared to be influenced by the suggestion that the serving of pies and chicken at the party indicated that it was a ‘Western-style 21st birthday party’ as opposed to ‘a traditional Aboriginal occasion’.
Submissions
The appellants submitted that the Magistrate made a number of errors falling into two categories: errors relating to purpose; and errors relating to credibility. There was also an argument regarding the application of a statutory presumption.
Errors relating to purpose
The appellants argued that the Magistrate erred in finding that the number of abalone caught was too great for sharing with family. They contended that the Magistrate failed to consider, among other things, evidence regarding the size of catch taken by Narungga men for the purpose of sharing and evidence by a witness as to the proper way to distinguish cultural and commercial catch. The evidence in question emphasised purpose rather than quantity.
Errors relating to credibility
It was submitted that the Magistrate improperly made adverse findings relating to the appellants’ credibility for a variety of reasons, including misrepresentation and misinterpretation of oral evidence.
Interaction between s 211 of the NTA and s 72(3)(a) of the Fisheries Management Act 2007 (SA)
Section 72(3)(a) of the Fisheries Management Act 2007 (SA) provides a presumption that a person proved to be in possession of a ‘commercial quantity’ of an aquatic resource will be presumed, in the absence of proof to the contrary, to possess that resource for the purpose of sale. It was submitted that the Magistrate erred in applying this presumption as the presumption did not apply to the operation of s 211 of the NTA.
Decision
Errors relating to purpose
The Court declined to vitiate the Magistrate’s finding that the number of abalone caught was too great for non-commercial purposes. Although the Magistrate erroneously summarised some evidence regarding the distinction between cultural and commercial catch, this was not material.
Errors relating to credibility
The Court found that the Magistrate made significant errors in his findings relating to credibility. Although there may have been a degree of inconsistency between accounts, it was not sufficient to reflect adversely on the appellants’ credibility, particularly given the passage of four years since the event.
Interaction between s 211 of the NTA and s 72(3)(a) of the Fisheries Management Act 2007 (SA)
The Court accepted that the presumption in s 72(3)(a) of the Fisheries Management Act 2007 (SA) did not create a presumption in respect of an extraneous provision such as s 211 of the NTA.
Conclusion
Due to the significant number of errors made by the Magistrate, all charges were quashed and remitted to the Magistrates Court for fresh trial except one relating to possession of undersized abalone. The Court noted that while it would still have been open to the Magistrate to reach the same overall conclusion, it could not be known whether the Magistrate would have done so and the reasoning would have been different in any case.