Wanganeen & Anor v Dietman; Shaw v Dietman

(2021) 139 SASR 170; [2021] SASCFC 25

South Australia Full Court

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Interrogate

Catchwords

1. Primary Industry
2. › Fish
3. › Offences
4. › Taking prohibited type of fish
5. › Unauthorised possession of commercial quantity of priority species
6. › Aboriginal customary rights
7. › Whether native title defence under s 211 of Native Title Act 1993 (Cth) established
8. › Fisheries Management Act 2007 (SA), ss 72, 74
9. › Native Title Act 1993 (Cth), s 211
1. Aboriginal and Torres Strait Islander Peoples
2. › Native Title
3. › Proof and evidence
4. › Section 211 Native Title Act 1993 (Cth)
5. › Conditions for operation of s 211
6. › Whether conduct for purpose of satisfying personal, domestic or non-commercial communal needs
7. › Evidentiary onus on defendant to raise defence
8. › Whether persuasive onus lies on prosecution or defence
1. Primary Industry
2. › Fish
3. › Offences
4. › Procedure and evidence on prosecution
5. › Presumption that possession of commercial quantity is for purpose of sale
6. › Whether presumption in s 72(3)(a) of Fisheries Management Act 2007 (SA) applies to extraneous provision such as s 211 of Native Title Act 1993 (Cth)
7. › Fisheries Management Act 2007 (SA), s 72(3)(a)
1. Criminal Law
2. › Onus of proof
3. › Persuasive burden
4. › Statutory exceptions and provisos
5. › Whether persuasive onus of proving statutory defence lies on prosecution or defendant
6. › Woolmington principle
7. › Whether s 211 of Native Title Act 1993 (Cth) creates exception or proviso

Quick Take

The presumption in s 72(3)(a) of the Fisheries Management Act 2007 (SA) that possession of a commercial quantity of fish is for the purpose of sale operates only to reverse the onus in relation to the aggravated form of the s 72 offence; it does not create a presumption applicable to the operation of s 211 of the Native Title Act 1993 (Cth). A person relying on the s 211 native title defence bears an evidentiary onus to adduce evidence capable of establishing each of the seven conditions for its operation, including that the conduct was for the purpose of satisfying personal, domestic or non-commercial communal needs and was in exercise of native title rights and interests. The question whether the persuasive burden of proof of the s 211 defence lies on the prosecution or the defence remains unresolved.