Local Court New South Wales Medium Neutral Citation: NSW Department of Industry (for Fisheries NSW) v Connolly [2022] NSWLC 8 Hearing dates: 16 November 2021 and 17 November 2021 Decision date: 04 February 2022 Jurisdiction: Criminal Before: O'Brien LCM Decision: Offences proven Catchwords: Fisheries prosecution – defence of Native Title – defence of honest and reasonable mistake of fact Legislation Cited: Criminal Procedure Act 1986 (NSW) Fisheries Act 1994 (Qld) Fisheries Management Act 1994 (NSW) Fisheries Management (General) Regulation 2010 (NSW) Fisheries Management (Ocean Hauling Share Management Plan) Regulation 2006 (NSW) Marine Estate Management Act 2014 (NSW) Marine Estate Management (Management Rules) Regulation 1999 (NSW) Marine Parks Act 1997 (NSW) Native Title Act 1993 (Cth) Native Title (New South Wales) Act 1994 (NSW) Cases Cited: Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) 250 CLR 209; [2013] HCA 33 Andrews v Ardler [2012] NSWSC 845; (2012) 266 FLR 177 Banjima People v Western Australia (No 2) [2013] FCA 868; (2013) 305 ALR 1 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41 Derschaw v Sutton (1996) 17 WAR 419 Dillon v Davies (1998) 8 Tas R 229; (1998) 145 FLR 111 DPP v Brooks [1974] AC 862 Dudley & Ors v Department of Primary Industries and Regions South Australia [2018] SASCFC 23; 231 LGERA 13 Environmental Protection Authority v Unomedical Proprietor Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 He Kaw Teh v R (1985) 157 CLR 523; [1985] HCA 43 Karpany v Dietman (2013) 252 CLR 507; [2013] HCA 47 Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 Mabo v State of Queensland [No 2] (1992) 175 CLR 1; [1992] HCA 23 Mason v Tritton (1994) 34 NSWLR 572 NSW Department of Planning, Industry & Environment v John Henry Junior Carriage (unreported, Local Court, Dick LCM, 24 September 2021) Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 P v Carberry and Stewart (unreported, Local Court, 2013/222966 & 2013/194121) Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28 R v DPP, ex parte Kebilene [2000] 2 AC 326 R v Hunt [1987] AC 352 R v Maio [1989] VR 281 R v Mateiasevici [1999] 3 VR 185; [1999] VSCA 120 Stevenson v Yasso [2006] 2 Qld R 150; [2006] QCA 40 Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373; [1995] HCA 47 Williamson v Ah On (1926) 39 CLR 95; [1926] HCA 46 Woolmington v DPP [1935] AC 462 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 Category: Principal judgment Parties: NSW Department of Industry (for Fisheries NSW) (Prosecution) Frank Connolly (Defendant) Representation: Mr El Hage of counsel instructed by Crown Solicitor (Prosecution) Defendant – self represented File Number(s): 2018/345104 2018/345110 2018/345124 2018/356996 2018/357002 2018/357004 2018/357016 2018/357020 2018/357021 2018/357024 Publication restriction: Nil Cur auld vult Judgment 1. This is a case about the right to fish. The accused is an Aboriginal person who has lived all of his life on the NSW South Coast. He was observed by NSW Fisheries Officers to have caught and later sold silver trevally by the means of ocean hauling fishing using a net. He has been charged with a number of offences. He has challenged those charges claiming an inherent right to fish based upon the traditions and customs of his people. 2. The accused, Frank James Connolly, also known by his indigenous name, 'Jerrinja, Wodi Wodi' of the Yuin Nation (Frank), was involved in ocean hauling activities using a net to catch silver trevally in November 2016 and has since been charged with several fishing offences, specifically: Sequence 1 - unlawfully use net for taking fish contrary to the provisions of section 24(1) of the Fisheries Management Act 1994 (NSW) (FM Act). Sequence 3 - possess fish illegally taken contrary to the provisions of section 20(3)(b) and offence pursuant to 35(1) of the FM Act. Sequence 4 - take fish for sale in circumstances where his authorisation was not appropriate contrary to the provisions of section 102(1) of the FM Act. Sequence 5 - unlawfully use net for taking fish contrary to the provisions of section 24(1) of the FM Act. Sequence 6 - unlawfully use net for taking fish contrary to the provisions of section 24(1) of the FM Act. Sequence 7 - unlawfully use net for taking fish contrary to the provisions of section 24(1) of the FM Act. Sequence 9 Harm or attempt to harm animal in a sanctuary zone contrary to the provisions of section 41 of the Marine Estate Management Act 2014 (NSW) (MEM Act). Sequence 10 - Harm or attempt to harm animal in a sanctuary zone contrary to the provisions of section 41 of the MEM Act. Sequence 11 - Harm or attempt to harm animal in a sanctuary zone contrary to the provisions of section 41 of the MEM Act. Sequence 12 - possess fish illegally taken contrary to the provisions of section 20(3)(b) and offence pursuant to 35(1) of the FM Act. 1. The offending conduct is alleged to have occurred on two separate occasions, namely, the 11th and the 21st November 2016, five years prior to the hearing. Sequences 1, 3, 5, 6, 7 and 12 carry a maximum penalty of $22,000 in fines and up to 6 months imprisonment. Sequences 4, 9, 10 and 11 are fine only offences which carry a maximum penalty of $55,000 with the exception of sequence 4 which carries a maximum penalty of $110,000. 2. Section 278 of the FM Act prescribes that the time within which proceedings may be commenced is to be not later than 2 years after the date the alleged offence was committed. Proceedings were commenced against the accused on 9 November 2018. There was no explanation offered to explain the delay. 3. Frank entered pleas of not guilty to, and has defended each of, the charges brought against him which were all heard before me at Nowra over two days from the 16th to 17th November 2021 inclusive. At the conclusion of the hearing I reserved my decision. 4. On the first day of the hearing, Frank applied for an adjournment on the basis that he had not been able to secure legal representation. The accused had, so far as I am aware, foreshadowed to the registry late on the day prior to the hearing that he would make an adjournment application. 5. On the first day and after hearing addresses both from the accused and Counsel for the prosecution on the application to adjourn, I was not satisfied that the accused had established proper grounds for an adjournment, noting that a number of witnesses for the prosecution, represented by counsel and an instructing solicitor, had travelled to court for the hearing. Frank had been legally represented on earlier mentions but was self-represented on the first day of hearing. I note from a document signed by the accused and dated 5 August 2019 and placed with the court papers that the accused, in seeking a summary dismissal of the proceedings, asserted, among many things, that he was unrepresented and had been unsuccessful in obtaining legal advice and at that time was therefore unable to enter a plea to the charges. I made it clear that I was aware that the delay in resolving this matter was cause for concern by the Chief Magistrate. After speaking with a lawyer named by the accused as someone he had spoken to it was established that the legal practitioner had not confirmed whether she would act for the accused in the matter and that he had been unwell for a period prior to the hearing. Mr El Hage also understood the accused had literacy issues. 6. During the two day hearing, the court heard from five witnesses and received seven exhibits into evidence. At the end of the hearing I reserved my decision. 7. I have had the benefit of detailed and comprehensive written submissions from Mr El-Hage which have been of enormous assistance in grappling with the plethora of complex and intricate legislation and Regulations together with the growing body of jurisprudence governing this area of the law. 8. In the interests of time and for ease of reference persons referred to in this judgment will, after having been initially identified, thereafter be referred to using their first name, their surname or their role in these proceedings as the case may be. Directions 1. As a magistrate, I am the trier of fact. As such, there are certain general directions that I must take into account as well as specific directions in this case. In accordance with the provisions of section 133(2) of the Criminal Procedure Act 1986 (NSW) and the principles distilled from the judgment of the High Court in Fleming v The Queen [1] , I am required to explain the reasoning process linking those matters so as to make a finding on the facts underlying the charges to which the accused has entered pleas of not guilty. This is to ensure that an accused person receives a fair trial according to law. I direct myself as follows and I will take these directions into account: 1. In a trial by judge alone, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. 2. I must bring an open, unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. 3. I may use my common sense, experience and wisdom in assessing the evidence. I must then deliver my verdict according to that evidence. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will. 4. The prosecution bears the onus of proving the guilt of the accused. The accused is presumed by law to be innocent of the offences for which he is charged and the accused does not have to prove that he did not commit the offences charged. 5. If the accused does adduce any evidence (which he has done) which is consistent with his innocence, he does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant; otherwise the prosecution will not have proved its case. 6. The standard of proof for the prosecution is proof beyond reasonable doubt. The prosecution does not have to prove everything about which evidence has been given beyond reasonable doubt, but it must prove the elements of the offence beyond reasonable doubt before I can be satisfied of the guilt of the accused beyond reasonable doubt. 7. In a criminal trial, it is not a question of my making a choice between the evidence and submissions of the prosecution and the defence. I have directed myself that I do not have to believe that the accused is telling the truth before he is entitled to be found not guilty. If, however, after considering the evidence of the accused and the witnesses called on his behalf, I find that the accused's evidence should not be accepted, I must be careful not to jump from that view to an automatic conclusion of guilt. If I find the accused's evidence unconvincing, I must set it to one side and go back to the rest of the evidence and ask myself whether I am, on consideration of such evidence as I do accept, satisfied, beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question. 8. To decide what the facts are in this case, I am required to assess the evidence. It is part of my function to decide how much or how little of the testimony of any witness I believe or rely upon. That, of course, also extends to inferences I would draw from documents. I may believe all or some of the witness's evidence. It is also for me to decide what weight should be attached to any particular evidence; that is the extent to which the evidence helps me to determine the relevant issues. 9. In assessing the evidence of a witness, some matters which may concern me include credibility and reliability. It is for me to judge whether the witness told the truth and whether they correctly recorded the facts about which they gave evidence. While I may take into account the manner in which a witness gave evidence, I should be careful when doing so. Giving evidence in a trial is not common and may be a stressful experience. People react and appear differently. Witnesses come from many different backgrounds and have different abilities, values and life experiences. There are too many variables to make the manner in which a witness gives evidence the only or even the most important, factor in my decision. 10. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do an act which the prosecution submits constitutes the alleged crime charged or becomes a fact in the issue for me to deduce other facts in issue. My function also extends to drawing reasonable inferences or conclusions from those facts that I find established. 11. In relying upon circumstantial evidence, the prosecution asks me to find certain basic facts and then from those facts, to draw a conclusion as to the existence of a further fact or for facts. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. 12. The correct approach is to determine what facts I find established by the evidence. I should consider all of those facts taken together as a whole, and ask whether I can conclude, from those facts, that the accused is guilty of the offences charged. If such a conclusion does not reasonably arise, the prosecution circumstantial case fails because I would not be satisfied beyond reasonable doubt. But if I find it such a conclusion is a reasonable one to draw, based on a combination of the established facts, before I can convict the accused, I must consider whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion that the prosecution says is established. 13. The drawing of a conclusion from one set of established facts to find another fact is proved, involves a logical and rational process of reasoning. I must not base my conclusion on mere speculation, conjecture or supposition. But if there is any other reasonable conclusion, i.e. another rational inference that is open on those facts that is inconsistent with the conclusion the prosecution asks me to find, then the prosecution circumstantial case will have failed as the prosecution's burden requires it to exclude all reasonable hypotheses consistent with innocence. 14. The next specific direction must give myself relates to the accused being charged with more than one charge contained in the court attendance notice. I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved the essential elements of that particular charge. If I have a reasonable doubt concerning the truthfulness or reliability of the evidence in relation to one of the charges, whether by reference to issues of demeanour of witnesses or any for any other reason, that must be taken into account by me in assessing the truthfulness or reliability of evidence generally. It may occur, in respect of one of the charges, that I am not sufficiently confident of the evidence relied upon by the prosecution to convict in respect of that charge. A situation may arise where, in relation to a particular charge, although I am inclined to think that the evidence is such that what is alleged by the prosecution probably happened in the manner alleged, I have some reasonable doubt about an element or elements of that particular offence. If that occurs, of course, I would find the accused not guilty in relation to that charge. That does not necessarily mean, however, that I cannot convict of any other charge. I have to consider why I had some reasonable doubt about that part of the prosecution evidence relied upon as proving the charge and consider whether it affects the way I assess the rest of the evidence, that is, as I doubt about that aspect of the evidence do I also have a reasonable doubt about the part of the evidence relevant to the other charges. 15. In this case the accused participated in a record of interview with Fisheries Officers which was then tendered by the prosecution. He also gave evidence on oath. He was not required to do either. He could have elected not to participate in the record of interview or to give evidence. By doing so, he became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of another witness in the trial because he is the accused and his evidence must be considered in the same way as the evidence of other witnesses. Subject to what I say later in this judgment about the defences raised in these proceedings, by giving evidence however he did not assume any onus to prove anything at the trial. Prosecution case for sequences 1, 3 and 4 – alleged offending on 11 November 2016 1. I set out below a summary of the prosecution case for the purposes of sequences 1, 3 and 4 the offending for which is alleged to have occurred on 11 November 2016. 2. At about 9.10am on 11th November 2016 Fisheries Officer (FO) Martin Kick (Kick) received certain intelligence that ocean haul netting was taking place on Long Beach, Beecroft Peninsula NSW from which he formed a view that Frank was engaged in that ocean haul netting. He spoke to District Fisheries Officer (DFO) Mark Fackerell (Fackerell) who was then undertaking a vessel patrol together with FO Sue Brown (Brown), and informed him of the suspected ocean haul netting. Armed with that intelligence, Fackerell and Brown proceeded to Long Beach in their Fisheries vessel arriving about 42 minutes later at waters adjacent to Long Beach and about 300 metres offshore from Long Beach. 3. With the assistance of binoculars, Fackerell observed a white tray-back four wheel drive vehicle on the beach with a number of blue fish boxes in the tray of the vehicle. Three men were seen on the beach, of whom Frank was one, as well as a light blue row boat at the edge of the water. The three men loaded the boat into a boat trailer. Fackerell moved north west of his surveillance position. 4. The boat was observed to have been rowed out approximately 50 metres from the beach in an arc from south to north along the beach. Nets were deployed from the boat in a manner consistent with ocean beach hauling. Fackerell took video footage which recorded images of Frank and the others with him hauling a net by hand into the beach. 5. About 15 minutes later Fackerell exited the Fisheries vessel at the rock platform at the southern end of Long Beach walking to the carpark to meet Kick who arrived not long afterwards. At about 10.54am both Fackerell and Kick observed Frank and the others drive their vehicle towing the boat for a short distance before launching the boat into the water. The boat was rowed into the ocean waters heading in a northerly direction parallel to the beach for a distance of 60 metres during which a net was deployed from the stern before the boat returned to shore. One of the men at the northern end of the net retrieved it by hand while the other two retrieved the net at the other end by hand. 6. Both Fackerell and Kick travelled in the Fisheries vehicle onto Long Beach to the location where all three men were positioned and approached and identified themselves to them. The following conversation then took place: Fackerell: - Hi, Mark Fackerell here. I am a Fisheries Officer. I'm not sure whether we have met before? Accused: - I am Frank Connelly, I have met you before. I remember you from Marine Parks a long time ago. Kick: Frank – We're here about your beach hauling activities today. Accused: Yes – I was wondering when you were going to drive up and speak to us. Kick: - Frank we need to see your commercial fishing license, boat license and endorsements cards. 1. The accused then produced his NSW Commercial Fishing Licence and his NSW Fishing Boat Licence for inspection. Fackerell photographed the front and back of both license cards which were annexed to his statement. 2. The conversation continued: Kick: - Where is your fishing business card that shows your endorsements? Accused: - Mum has it I think. I'm not fishing under it. I'm fishing under Native Title. 1. The conversation between Kick and the accused continued and at the end of the conversation the accused enquired if it was in order for him to assist the other two men to load up the rest of the net into the boat to which Kick agreed. Fackerell took a video of the accused and the other two men loaded the fish caught by the hauling operation into the boat. 2. After the fish had been loaded into the boat both FOs approached the accused who agreed to a notebook interview during which time the accused was asked if he was a licensed commercial fisher. The accused said to him: "I am but I'm not doing it under that, I am a Native Title holder". The accused was asked if he held a fishing business that allowed him to undertake the fishing activity which had just taken place. The accused replied: "Yes I do under my Mum's name" later telling Fackerell the number of that business when asked. 3. Fackerell asked him: "Does this fishing business allow you to undertake beach hauling?" to which the accused replied: "Of course it does under Native Title. I have the only license in my community. I'm Jerinja, Wodi Wodi, Yuin Nation". 4. The accused told the FOs that he had been undertaking beach hauling that day starting at 10 o'clock catching two boxes of trevally which he intended to sell in order to "pay my dues". Realising that the accused had not been cautioned, the caution was read out to him and the accused was given an opportunity to confirm his responses or make another response to the questions to which he had been asked. 5. The accused maintained that Fishing Business 2217 was endorsed to undertake ocean beach hauling under native title. When asked if the fishing business had shares allowing him to beach haul, the accused refused to answer him then telling the FO "I'm on Native Title". The accused refused to identify the names of the men who assisted him with the hauling operations. When asked if he held any other license, permit or authority allowing him to undertake ocean beach hauling the accused said to him: "I am under Native Title. Indigenous people own the land and water under Native Title". 6. The accused refused to allow FOs to seize the trevally and the hauling net. The FOs did not press the seizure of the fish or the net or otherwise pursue the issue. 7. Fackerell attended Nowra Fresh Fish and Meat Market on Monday, 14 November 2016 and spoke with Anthony Richard William Banks (Banks) who is one of the owners of that establishment conducting a record of interview with him and from which he learned that Banks had received a consignment of 64.1 kilograms of trevally from the accused on Friday, 11 November 2016 to whom he paid $320.50. Evidence for the prosecution case for sequences 5-7, 9-11 and 12 alleged to have occurred on 21 November 2016 1. For the purposes of sequences 5, 6, 7, 9, 10, 11 and 12 the offending which is alleged to have occurred on 21 November 2016, the prosecution case can be briefly paraphrased as set out hereafter. 2. At about 9:07 AM on 21 November 2016 Kick and Fackerell, both in full departmental uniforms, observed the same boat that they had seen on 11 November 2016 being towed at the rear of a four-wheel drive vehicle on Callala Beach Road, Callala Bay whilst conducting a vehicle patrol adjacent to the ocean waters of the Jervis Bay Marine Park. Half an hour later, from a position at Callala Point, Fackerell observed the same vehicle towing the same boat on Hare Bay Beach accompanied by the same vehicle he had seen on 11 November 2016. 3. The vehicles came to a stop shortly thereafter on Hare Bay Beach and the boat was placed into the water and rowed through the waters of the Sanctuary Zone [2] . About three minutes later a hauling net was deployed into the water from the boat and hauled back to shore. 4. Fackerell was joined by DFO Glenn Staples (Staples) whom Fackerell had called earlier at 9:50 AM. From a position approximately 1 km away and using binoculars, Staples observed the two vehicles and eight persons hand hauling a hauling net back to shore. He saw fish being removed from the net and placed onto a boat trailer connected to one of the vehicles. He was later joined by Fackerell and Kick who continued to observe the eight men. 5. The boat was observed by all three fisheries officers being launched at two further locations along Hare Bay Beach around 10:27 AM and 11:23 AM respectively. On each occasion the eight men were observed hauling in a net by hand after which time the boat returned to shore and fish were removed from the net and placed by them in a blue fish bin. 6. Both Kick and Fackerell observed the accused drive past their location at about 12:43 PM in one of the vehicles. Only one of the passengers, Edward Farrell, was known to both officers whilst the others were not. Evidence for the Accused 1. I now turn to the evidence given by the accused which I have set out in a paraphrased narrative. There does not appear to be a great deal in dispute in the present case. Although there were no agreed facts tendered to the court, it would seem that the accused accepted that his alleged offending conduct was legitimised by virtue of his rights under Native Title. 2. He told the court that he is an indigenous man, is 53 years of age and learned to fish from his father who died in 2013. He had fished in the area since 1965. He said that he took over the fishing business operated by his father in 2009. He also said he held a general fishing licence. His mother, at the time of the alleged offending, was unwell and had assigned control of the business to him. A number of documents were tendered without objection during his evidence [3] . Issues 1. There are in my view six issues which arise for determination in the present case. I will address each of these in turn as follows. First Issue – for the purposes of sequences 1, 5, 6 and 7 - was the accused lawfully conducting ocean hauling operations by the use of an ocean hauling net pursuant to his commercial licence? 1. Section 24 of the FM Act relevantly provides: 24 Lawful use of nets or traps (1) A person must not use a net or trap for taking any fish unless its use by the person for taking those fish is declared by the Regulations to be a lawful use of the net or trap. Maximum penalty— (a) in the case of an individual— (i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence. (2) This section does not affect any other prohibition of the use of a net or trap under a fishing closure or other provision of or made under this or any other Act. 1. Accordingly, the elements of each of these offences brought pursuant to section 24 of the FM Act which must be proved beyond reasonable doubt are as follows: 1. the defendant used a net for taking fish (in this instance a hauling net (general-purpose)); 2. the use of the net was not a lawful use under the regulations (including that the defendant did not hold the relevant endorsement); and 3. when the defendant used the net, he was in the waters to which the FM Act applied. First element 1. Section 4 (1) of the FM Act defines the relevant conduct in relation to the use of the net for "taking fish" as: "take" fish includes— (a) catch or kill fish, or (b) gather or collect fish, or (c) remove fish from any rock or other matter, or attempt to do so. 1. A hauling net is described in Item 2(b)(ii) in the Table to cl 13A of the Ocean Hauling Share Management Plan [4] (the Plan). Second Element 1. Part 3 of the Fisheries Management (General) Regulation 2010 (NSW) (FMG Regulations) relevantly provided with respect to the lawful uses of nets and other fishing gear in particular circumstances: 21 Lawful use of fishing gear (1) For the purposes of this Part, a person who holds a commercial fishing licence that does not authorise the person to take fish for sale in a restricted fishery or a share management fishery is to be treated, in respect of that fishery, as a person who is not a commercial fisher. (2) Accordingly, despite the other provisions of this Part, it is unlawful for such a person to use a net or other fishing gear for taking any fish in that restricted fishery or share management fishery if the use of that net or gear for taking those fish would, if the person were not a commercial fisher, be unlawful. 1. "Hauling" is defined in regulation 3(1) to include "casting and shooting any net with or without hauling lines". 2. Regulation 23 of the FMG Regulations specifies particular nets that may lawfully be used for the Ocean Hauling Fishery and relevantly provided: 23 Nets used in share management fisheries (1) The nets specified in Column 1 of the Table to this clause may lawfully be used to take fish in the waters of the share management fisheries specified next to the net concerned in Column 2 of the Table to this clause. (2) The description of the net, and its use, in relation to the waters of a share management fishery, must comply with the requirements prescribed by the share management plan for the fishery concerned (including any requirements of a supporting plan that applies to the fishery). 1. The table to regulation 23 includes within the two columns referred to: Hauling net (general purpose) Estuary general Ocean hauling 1. Clause 13A(1) of the Plan specifies that it is lawful for the holder of a hauling net (general purpose) endorsement to use a hauling net for taking fish in the waters specified in the table to that clause (which includes Jervis Bay) if the net complies with clause 13A and the description provided in the table. 2. It is submitted that the effect of regulations 21 and 23 of the FMG Regulations, read together with clause 13A of the Plan, is that: 1. in addition to a commercial license, a person must, amongst other things, hold a hauling net (general purpose) endorsement in order to lawfully be able to take fish from the Ocean Hauling Fishery; and 2. a hauling net (general purpose) may only be used in the Ocean Hauling Fishery by a person who holds a hauling net (general purpose) endorsement and its use must comply with the method of hauling referred to in Clause 13A of the Plan. Third Element 1. With respect to sequence 1, the offending conduct is alleged to have occurred in the waters of Jervis Bay adjacent to Long Beach, Beecroft Peninsula and thus within waters to which the FM Act applies. 2. With respect to sequences 5 – 7, the offending conduct is alleged to have occurred in the waters of Jervis Bay adjacent to Hare Bay Beach, Beecroft Peninsula and therefore is within waters to which the FM Act applies. 3. It would appear to be uncontroversial and otherwise uncontentious and common ground [5] that the accused's father, also named Frank Connolly (referred to hereafter as Frank Connolly Senior), was the owner of Fishing Business 2217 (the 'Fishing Business') prior to his death in 2013 and which held a number of shares and endorsements referred to in the Fisheries Management (Ocean Hauling Share Management Plan) Regulation 2006 (NSW) as well as permits issued under section 37 of the FM Act (the Permits). 4. The Permits, which were not transferable, authorised Frank Connelly Senior to remove fish from the ocean waters of the Jervis Bay Marine Park at specified locations by the use of a hauling net and expired on 30 June each year being the end of each fishing year. 5. Ownership of the Fishing Business was transferred from the estate of the late Frank Connelly Senior to his widow, Rhonda Connolly, the mother of the accused on 17 August 2016. 6. The accused was granted a commercial fishing license on 7 October 2016 and at the same time was authorised as the nominated fisher for the Fishing Business. 7. The position taken by the prosecution is that pursuant to section 66 of the FM Act, the holder of a commercial fishing license is not authorised to take fish in a Share Management Fishery unless: a. the licensee is the holder of shares in the fishery or is duly nominated by that holder to take fish on behalf of that holder, and b. if the management plan fixes a minimum shareholding to take fish in the fishery that applies to the holder- the holder has not less than the minimum shareholding required, and c. the license is duly endorsed, in accordance with this Division, for the taking of fish in the fishery. 1. The court was also made aware that the Ocean Hauling Fishery, established under Part 3 of the FM Act, is a commercial share management fishery, the management plan for which is contained in the Appendix found within the Fisheries Management (Ocean Hauling Share Management Plan) Regulation 2006 (Ocean Hauling SMP) and consists of the use of a hauling net or 'purse seine' net to take fish from, among other areas, the waters of Jervis Bay. It extends to the use of any net by the method of hauling to take fish from those waters. 2. Clause 4(1) of the Ocean Hauling SMP provides that the Ocean Hauling Fishery is divided into seven regions. Region 6 is the "upper South Coast" region. In accordance with clause 6 of the Ocean Hauling SMP a Hauling Net (General Purpose) Endorsement authorises the holder to use a hauling net (general purpose) to take fish in the region of the fishery specified endorsement - sub clause (4). 3. As at 7 October 2016, the accused was authorised to take fish for sale with the use of a hauling net (general purpose) in Region 6 of the Ocean Hauling Fishery in accordance with the 10 shares in Ocean Hauling – Hauling Net (General Purpose) Endorsement for Region 6 then held by the Fishing Business. 4. On 29 October 2016 (about two weeks prior to the offending conduct alleged to have occurred on 11 November 2016) Frank's mother, Rhonda, transferred 10 shares in each of Ocean Hauling – Hauling Net (General Purpose) Endorsement for Region 6 and Ocean Hauling – Garfish Net (Hauling) Endorsement Region 6 held by the Fishing Business forming part of the estate of the accused's late father, Frank Connolly Senior, to other shareholders in the Ocean Hauling Fishery. On 11 November 2016, Rhonda transferred 40 shares in Ocean Hauling – General Ocean Hauling Endorsement for Region 6 to another shareholder in the Ocean Hauling Fishery. 5. It is apparent from the statement made by Foster (which was unchallenged) that from the time of the transfer of shares in the Fishing Business (to which I referred in the preceding paragraph of this judgment) the accused was no longer authorised to take fish for sale with the use of a hauling net (general-purpose) in Region 6 (or any other region) of the Ocean Hauling Fishery on the basis that the Fishing Business no longer held shares authorising the taking of fish in this manner in any region of the Ocean Hauling Fishery. 6. Likewise from 11 November 2016 the accused was not authorised to assist another person who held a hauling net (general purpose), a garfish net (hauling) endorsement on the basis that the Fishing Business no longer held shares authorising this activity. 7. It is also apparent that at the time of the alleged offending, neither the accused nor his mother, Rhonda, held a permit under section 37 of the FM Act authorising him to take fish by use of a hauling net from the ocean waters of Jervis Bay Marine Park and was not entitled to be issued with such a permit. 8. For the purposes of sequence 4 it is also clear that on 11 November 2016 the accused spoke with Banks, one of three owners of Nowra Fresh Fish and Meat Market (whose evidence was also largely uncontested) who advised the accused that that business could take the fish, the two boxes of trevally, on consignment. Following that conversation the accused attended that establishment and showed Banks the four boxes of fish which were then weighed at 64.1 kg. Banks paid the accused the sum of $320.80 in cash for the fish. 9. Banks was subsequently interviewed by Fackerell and Kick on 14 November 2016 who told them of the purchase of the fish from the accused and the amount paid. Determination of the First Issue 1. On all of the evidence which I do accept I am satisfied, to the requisite standard, that the accused was not lawfully entitled to conduct ocean hauling operations under his commercial fishing licence. Second Issue - was the accused in possession of fish illegally taken for the purposes of sequences 3 and 12? 1. Section 35 of the FM Act relevantly provides: 35 Possessing fish illegally taken (1) A person who is in possession of fish which were illegally taken is guilty of an offence. Maximum penalty— (a) in the case of an individual— (i) 200 penalty units or imprisonment for 6 months (or both) for a first offence, or (ii) 400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or (b) in the case of a corporation— (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence. (2) It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person could not reasonably have known that the fish had been illegally taken. (3) In this section— "illegally taken" means taken in contravention of a provision of or made under— (a) this Act, or (b) a law of another State or Territory, or of the Commonwealth, relating to fisheries. 1. Accordingly, to prove that the accused committed the offending conduct, the prosecution must establish: 1. the accused possessed fish; and 2. such fish were illegally taken. First element 1. Section 4(1) defines "possession" as: "possession" of a thing includes having the thing under control at any place, even though some other person has physical possession of the thing. 1. Possession is defined in section 4 of the FM Act as including: "having the thing under control at any place, even though some other person has physical possession of the thing". 1. The definition picks up and incorporates the common law approach to possession. 2. At common law, people have in their possession whatever is, to their knowledge, physically in their custody or under their physical control [6] . A person may have actual possession or constructive possession. A person may also have sole possession or joint possession. 3. "Fish" is defined in section 5. Second element 1. "Take" fish is defined in section 4(1). "Illegally taken" is defined in section 35(3). The prosecution rely for the purposes of sequence 3 on section 20(3)(b) of the FM Act pursuant to which it is an offence to take fish from waters declared in the Regulations under section 20(2) which provides: (2) The regulations may declare specified waters to be waters in which all or a class of commercial fishing is prohibited absolutely or conditionally. 1. Clause 9(1)(b) of the FMG Regulations provided: 9 Fish and waters protected from commercial fishing (1) For the purposes of section 20(2) of the Act, it is declared that: (a) the waters specified in Schedule 3 are waters in which the class of commercial fishing specified in that Schedule as being a prohibited class of commercial fishing in relation to those waters is prohibited, and (b) all ocean and estuarine waters are waters in which the class of commercial fishing that consists of any commercial fishing activity other than the following is prohibited: (i) a fishing activity referred to in Schedule 1 to the Act, 1. Schedule 1 to the FM Act specifies "Ocean Hauling Fishery" in clause 6B. 2. Insofar as sequence 3 is concerned, the accused is alleged to have engaged in the offending conduct in the waters of Jervis Bay adjacent to Long Beach, Beecroft Peninsula within Region 6 of the Ocean Hauling Fishery. 3. The prosecution assert that the combined effect of clause 13A of the Plan, read in conjunction with regulations 21 and 23 of the FMG Regulations, is that: 1. in addition to a commercial licence, a person must, amongst other things, hold a hauling net (general purpose) endorsement in order to lawfully be able to take fish from the Ocean Hauling Fishery; and 2. a hauling net (general purpose) may only be used in the Ocean Hauling Fishery by a person who holds a hauling net (general purpose) endorsement and its use must comply with the method of hauling set out in clause 13A of the Plan. 1. Accordingly, the prosecution submitted that if the accused did not hold a relevant endorsement at the time the offence referred to in sequence 3 is alleged to have taken place, he would not have lawfully engaged in a fishing activity referred to in Schedule 1 and, in turn would not have been within the 'carve out' referred to in clause 9(1)(b)(i) of the FMG Regulations and would have been in contravention of section 20(3)(b) of the FM Act. 2. With respect to sequence 12, the prosecution rely on section 24(1) of the FM Act and submit that to prove the charge, the prosecution must establish to the requisite standard the three elements referred to with respect to the offending charged under section 24 of the FM Act. 3. In that regard the 'relevant waters' within which the offending conduct referred to in sequence 12 is alleged to have occurred is in the waters of Jervis Bay, adjacent to Hare Bay, Beecroft Peninsula and therefore waters to which the FM Act applies. 4. Section 35(2) affords the accused a defence to sequence 3 provided that he is able to establish, on the balance of probabilities, that he could not reasonably have known that the fish had been illegally taken. It is clear from the evidence that at the time of the alleged offending conduct he did not hold the necessary endorsement under the plan and the FM Act. In his evidence he asserted that his commercial fishing license provided him with the necessary authority to conduct the ocean hauling activity. He did not specifically address the issue of the endorsements and he was not cross-examined about those matters. In this instance there is a positive onus upon the accused to prove that he did not know the fish were illegally taken. There is no evidence from the defence case on this issue. Determination of the second issue 1. On all of the evidence which I do accept, and to which I have referred already in this judgment I am satisfied, beyond reasonable doubt that the accused was in possession of the silver trevally on 11 November 2016. Third Issue – did the accused hold a duly endorsed commercial fishing licence for the purposes of sequence 4? 1. Section 102 of the FM act relevantly provides: 102 Commercial fishers required to be licensed (1) A person must not take fish for sale from waters to which this Act applies unless the person is authorised to do so by a commercial fishing licence. Maximum penalty— (a) in the case of an individual— (i) 1,000 penalty units for a first offence, or (ii) 2,000 penalty units for a second or subsequent offence, or (b) in the case of a corporation— (i) 2,000 penalty units for a first offence, or (ii) 4,000 penalty units for a second or subsequent offence. (2) This section does not apply to a member of the crew of a boat licensed under Division 2 who takes fish as an employee or agent of the master of the boat. Note— A commercial fishing licence will, under other provisions of this Act, require an endorsement if the holder is to take fish in a share management fishery or in a restricted fishery. 1. In order to prove the offending conduct with respect to sequence 4, the prosecution must establish beyond reasonable doubt: 1. the accused took fish; 2. from waters to which the FM act applies; and 3. The accused was not authorised to do so by a commercial fishing license First element 1. In relation to the first element reference should be made to the definition of "taking fish' referred to in section 4 (1) of the FM Act. Second element 1. In relation to the second element, the Ocean Hauling Fishery is regulated by the FM Act and the Plan. 2. The offending conduct is alleged to have occurred in the waters of Jervis Bay adjacent to Long Beach, Beecroft Peninsula which is located within Region 6 referred to as the "upper south coast" lying between the coordinates specified in clause 4 (2) (f) of the Plan. Third element 1. Section 66 of the FM Act provides: 66 Who may fish in share management fisheries After the commencement of the management plan for a share management fishery, a commercial fishing licence does not authorise a person to take fish in the fishery unless— (a) the licensee is the holder of shares in the fishery or is duly nominated by that holder to take fish on behalf of that holder, and (b) if the management plan fixes a minimum shareholding to take fish in the fishery that applies to the holder—the holder has not less than the minimum shareholding required, and (c) the licence is duly endorsed, in accordance with this Division, for the taking of fish in the fishery. 1. Section 105 of the FM Act relevantly provides: Evidentiary provision The fact that a person holds a commercial fishing licence is evidence that fish taken by the person or in the person's possession were fish taken or in possession for sale. Determination of the Third issue 1. I am satisfied on all of the evidence which I do accept that at the time of the offending conduct the commercial licence held by the accused did not hold the minimum shareholding required or the endorsements for the taking of fish in the fishery. Fourth Issue – did the accused take fish while in a sanctuary zone of a marine park for the purposes of sequences 9 – 11 inclusive? 1. Section 41 of the MEM Act relevantly provides: 41 Offences against management Regulations A person is guilty of an offence if the person contravenes a provision of the Regulations referred to in this Division or Division 4, being a contravention that is designated by the Regulations as a serious offence. Maximum penalty— (a) in the case of a corporation, 1,000 penalty units, or (b) in any other case, 500 penalty units. 1. Accordingly, to establish the offending conduct, the prosecution must prove beyond reasonable doubt: 1. that the accused contravened a provision of the Marine Estate Management (Management Rules) Regulation 1999 (NSW) (MEM(MR) Regulations) [7] ; 2. and that such contravention is designated by the Regulations as a serious offence. First element 1. The offending conduct for sequences 9, 10 and 11 are alleged to have occurred on the waters adjacent to Hare Bay Beach, Beecroft Peninsula which falls within the Hare Bay Sanctuary Zone of the Jervis Bay Marine Park [8] . 2. The definition of animal includes fish [9] . "Harm" in the case of an "animal" is defined to include the taking of the animal [10] . The definition of "take an animal" includes to "(a) catch, capture or kill an animal" or "gather or collect an animal". Second element 1. For the purposes of section 41 of the MEM Act a contravention of cl. 1.11(1) of the MEM (MR) Regulations is designated as a serious offence. 2. The prosecution rely upon clause 1.11(1)(a) of the MEM(MR) Regulations which relevantly provides: 1.11 Protection of animals, plants and habitat in sanctuary zone (1) A person must not, while in the sanctuary zone of a marine park— (a) harm, or attempt to harm, any animal, or (b) harm, or attempt to harm, any plant, or (c) damage, take or interfere with, or attempt to damage, take or interfere with, any part of the habitat (including soil, sand, shells or other material occurring naturally within the zone), or (d) clean any fish or fishing gear, except with the consent of the relevant Ministers. (2) Consent is only to be given under subclause (1) for research, environmental protection, public health, traditional use or public safety purposes. (3) For the purposes of section 41 of the Act, a contravention of subclause (1) is designated as a serious offence. 1. Jervis Bay Marine Park is, by virtue of Schedule 4 to the Marine Parks Act 1997 (NSW), declared a marine park [11] . The MEM (MR) Regulations set out the management rules for the Jervis Bay Marine Park [12] . The management rules for a Marine Park include sanctuary, habitat protection, general use and special-purpose zones [13] . A sanctuary zone provides for the highest level of protection and provides for a limited range of activities (not including commercial activities [14] . 2. Clause 1.11(1) and (2) provides that a person does not commit the offence under clause 1.11 for anything done with the consent of the relevant Minister. There is no evidence that the accused had any such consent. Determination of the Fourth Issue 1. I am satisfied on all the evidence that the prosecution have established beyond reasonable doubt that the accused took fish from waters within the Sanctuary zone contrary to the provisions contained within the MEM (MR) Regulations which constitutes therefore a serious offence. Fifth Issue – was the accused conducting fishing operations under Native Title? 1. European settlement had a devastating and irreversible impact on the First Nation People of this continent. The dispossession of their land, their exposure to new diseases and the imposition of new laws had a crushing effect on their health, culture and way of life without any thought of the repercussions. Without realising it, sovereignty was imposed upon First Nations Peoples. 2. There would appear to be no issue that the accused is an Aboriginal person and a member of the Yuin Nation. Section 3 of the FM Act sets out the objects of the Act, one of which is to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to promote the continuation of Aboriginal cultural fishing. 3. The accused maintains a claimed right to take fish as a native title holder. His evidence was that he is a local from 'Roseby Park' [15] "and learned the trade of fishing with my old man". He has worked as a fisherman there ever since and "was an oyster farmer at Greenwell Point" for over ten years before his father became unwell and then became "a fisherman". He said he "learned the trade"…learned how to spot fish…how to throw nets" from his father "where we was allowed to fish" [16] . 4. He told the court his father had "fished these waters since 1965" and that he had been granted his fishing licence. His evidence was that "I've always known myself a Jerrinja boy from Roseby Park" and likes "being called Jerrinja" [17] . 5. He tendered a number of documents during his evidence as a bundle [18] and made reference in his evidence in chief to selling fish to Banks [19] . One of the documents he tendered was headed "New South Wales Ocean Hauling Commercial Fishers Code of Practice for Hauling Activities" which was marked as "Version November 2009". 6. During cross examination the accused nevertheless asserted he had held that document since 2001 and, as I understand his evidence, it applied to the Jervis Bay Marine Park ever since "my father started fishing in 2001". He continued: "This was always on the tables in Marine Parks out Jervis Bay where as traditional owners of the land and the water, we're entitled to this paper and this is what it means on paragraph 34". Further in cross examination he told the court "All this writing come in at 2001 when the shares come in and the marine park come in". 7. When asked if he remembered the writing at the parks when he went fishing he told Mr El Hage: "What writing? There was no writing when I used to fish out there, there was no writing. The rules come in later on down the track of splitting the beach up, the marine park splitting the waters up and give the local indigenous people rights to fish these waters". He continued: "There was no nothing displayed at the parks or anywhere. As traditional owner of the land and the water we was allowed to go out there and fish". When asked how he became aware of the rules he said: "How did I know about them? We went through all our culture back millions and millions of years we used to fish these waters here" [20] . 8. The accused has raised a defence based upon his indigenous fishing rights. The prosecution concede that the accused is a member of the native title claim group (the South Coast People) which has filed a Native Title Determination Application on 3 August 2017 filed in the Federal Court of Australia (the South Coast Claim). The South Coast Claim is yet to be determined by the Federal Court of Australia. 9. The prosecution accepts that the alleged offending in this matter occurred within the geographical boundaries of the South Coast Claim. 10. Section 211 of the Native Title Act 1993 (Cth) (NTA) relevantly provides: 211 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: (a) hunting; (b) fishing; (c) gathering; (d) a cultural or spiritual activity; (e) any other kind of activity prescribed for the purpose of this paragraph. 1. Thus section 211 provides, in effect, that a law which prohibits or restricts persons from fishing or gathering other than in accordance with a licence or other permit does not prohibit or restrict the native title holders from carrying on those classes of activity in certain circumstances. 2. The term 'native title holder' is relevantly defined by section 224(b) to mean the person or persons who hold native title. The terms 'native title' and 'native title rights and interests' are defined in section 223. 3. Section 287 of the FM Act sets out that the Act does not affect the operation of the NTA and relevantly provides: 287 Native title rights and interests This Act does not affect the operation of the Native Title Act 1993 of the Commonwealth or the Native Title (New South Wales) Act 1994 in respect of the recognition of native title rights and interests within the meaning of the Commonwealth Act or in any other respect. 1. In an unreported decision of His Honour Magistrate Dick in NSW Department of Planning, Industry & Environment v John Henry Junior Carriage (unreported, Local Court, Dick LCM, 24 September 2021) the accused in that matter tendered an extract of Hansard from the Senate dated 21 December 1993 (which can be of assistance to the court in discerning the intention of Parliament) dealing with an amendment to the NTA that became section 211: It seeks to insert a new clause…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 doesn't prevent the 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 the same activity. 1. The operation of section 211 was discussed in Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373; [1995] HCA 47 where the court observed: "Section 211(2) removes the requirement of a licence, permit or other instrument granted or issued under the law referred to in section 211(1)(b) as a legal condition upon the exercise of the native title rights specified in subsection (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 section 211 are to be enjoyed without the necessity of first obtaining a licence, permit or other instrument. The effect of section 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 section 211." 1. The majority, in the decision of Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) 250 CLR 209; [2013] HCA 33 , said: "Telling the native title holders 'you may not fish for the purpose of sale or trade without a licence;' did not, and does not sever their connection with the waters concerned and it did not, and does not, deny the continued exercise of the rights and interests possessed by them under the traditional laws acknowledged and traditional customs observed by them." 1. Recognising that section 211 of the NTA operates in conjunction with section 109 of the Commonwealth Constitution, the effect of section 211 was discussed in Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 where Gummow J observed: "Direct inconsistency arose between the prohibition purportedly imposed on the appellant by s 54(1) of the Fauna Act and the removal of the prohibition by s 211(2) of the Native Title Act. Section 109 of the Constitution operated to deny what otherwise could have been the appellant's liability to punishment for contravention of s 54(1) of the Fauna Act. Therefore the complaint against the appellant was not well based in law". 1. The prosecution accepted that the relevant sections of the legislation, pursuant to which all of the charges have been brought against the accused, fall within sectionss 211(1)(b), (ba) and (c) of the NTA. 2. It was submitted by the prosecution (and with which I respectfully agree) that for section 211 of the NTA to apply to the charges brought against the accused (the effect of which would be to suspend the operation of those provisions), the accused is required to establish: 1. the accused is the holder of native title rights and interests which include rights to carry out fishing; 2. the offending conduct which is the subject of the charges: 1. fell within a class of activity that represents the exercise or enjoyment of native title rights and interests – that is the accused was, under traditional laws and customs, entitled to engage in the conduct giving rise to the alleged offences; and 2. was done in exercise or enjoyment of the native title rights and interests held in relation to particular land or waters – section 211(1)(a) and section 211(2)(b); and 1. the accused carried out the activities for the purpose of satisfying his personal, domestic or non-commercial communal needs – section 211(2)(a) on the balance of probabilities. 1. As to first of the matters which the accused is required to establish, namely, the question of whether the accused is the holder of native title rights and interests which include rights to carry out fishing, it is submitted that it is not sufficient for the accused to show that fishing of 'silver trevally' that has been handed down through the generations. In this regard the observations of the court in Dudley & Ors v Department of Primary Industries and Regions South Australia [2018] SASCFC 23; 231 LGERA 13 [21] are apposite: "in order to pass from mere evidence of a tradition… 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". 1. The rules in question are the rules that existed before sovereignty and which have been observed continuously by the native title group as a whole. 2. In Karpany v Dietman (2013) 252 CLR 507; [2013] HCA 47 the court remarked that in no case may a people be deprived of its traditional means of subsistence. In that case section 211 provided a defence because abalone was taken in accordance with traditional laws and customs. In that decision section 211 provided a defence to the possession of a quantity of undersized abalone that were taken in accordance with traditional laws and customs of the relevant native title holders. It was held [22] that the laws regulating commercial and non-commercial fishing did not extinguish native title rights to fish. 3. The prosecution submitted that section 211 sets out a statutory exception that arises from matters entirely distinct from the subject matter of the relevant offences (i.e. the existence of native title rights, their content and the conduct of the relevant class of activity in accordance with the requirements of section 211(2)). Further, such new matter called for a consideration of matters "peculiarly within the knowledge of the defendant" relying upon the authority of Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41 in which the allocation of the burden of proof was considered by Toohey and Gaudron JJ (with whom Brennan and Deane JJ concurred in separate judgments) in which the court observed [23] : "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 and so, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an exception) which serves to take a person outside the operation of the general rule". 1. In the same decision the court also observed: "One indication that matter may be a matter of exception rather than part of the statement of the general rule is that it sets up some new or different matter from the subject matter of the rule". 1. Later the court remarked: "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". 1. Accordingly, in order to rely upon the provisions of section 211, the prosecution submitted that the accused is required to: 1. prove, the facts relevant to fulfilment of the conditions set out in section 211; and 2. establish that each of the requirements in section 211(1) is satisfied (to the extent that the requirement involves factual issues) and that his conduct was within section 211(2)(a) and (b) on the balance of probabilities. 1. These submissions would appear to have the support of a number of authorities including Mason v Tritton (1994) 34 NSWLR 572 in which the Court of Appeal considered the possible application of a common law defence of native title in connection with the charge of possessing more than the permitted quantity of abalone. In that decision the Court of Appeal found that the defendant had failed to provide sufficient evidence to establish native title in accordance with the principles in Mabo v State of Queensland [No 2] (1992) 175 CLR 1; [1992] HCA 23 in which the court noted that the defendant was required to establish or "make the case that his conduct fell within the system of rules recognised by the common law" [24] . 1. A similar approach was taken in the decision of Stevenson v Yasso [2006] 2 Qld R 150; [2006] QCA 40 where the majority of the Queensland Court of Appeal found that the defendant for a burden on the balance of probabilities to make out a defence provided for under section 14 of the Fisheries Act 1994 (Qld) that an aboriginal person may take, use or keep fisheries resources under aboriginal tradition [25] . 2. It is apparent that section 211 (2) can only operate where all the threshold conditions set out in sections 211 (1) (a) to (c) are satisfied. It is already been observed that the relevant provisions of: 1. sections 24(1), 35(1) and 102(1) of the FM Act, the FM Regulations and the Ocean Hauling Plan require a person to have authorisation to take fish for sale with the use of a hauling net (general-purpose) from the Ocean hauling fishery but do not provide that the relevant statutory permission is only to be granted or issued for research, environmental protection, public health or public safety purposes; 2. section 35(1) require a person to have authorisation to undertake fishing activity of the type undertaken by the accused, but do not provide that the relevant statutory permission is only to be granted or issued for research, environmental protection, public health or public safety purposes; 3. section 102(1) requires a person to have authorisation to take fish for sale from the waters which are the subject of the alleged offending but do not provide that the relevant statutory permission is only to be granted or issued for research, environmental protection, public health or public safety purposes. 1. Likewise the relevant statutory provisions do not confer rights or interests only on or for the benefit of Aboriginal or Torres Straight Islanders. 2. Section 41 of the MEM Act (relevant to sequences 9 – 11) falls within section 211(1)(b),(ba) and (c) of the NTA. "Harm" is defined in clause 1.3(1) of the MEM Regulations. A person is required to have authorisation from the minister to take fish from the Sanctuary zone of a marine park. The Regulations does not provide that the relevant statutory permission is only to be granted or issued for research, environmental protection, public's health or public safety purposes and the Minister may grant authorisation for traditional use, which is defined in clause 1.32 mean a use that satisfies personal, domestic or non-commercial communal needs of aboriginal people. The MEM Regulations does not confer rights or interests only on a for the benefit of indigenous persons. 3. It is evident from what has been said that the South Coast Claim has not been finalised. The accused, in order to invoke section 211, is required to adduce evidence sufficient to prove fulfilment of the necessary conditions to establish native title and otherwise to prove the facts relevant to section 211(1) (a) and section 211(2) (a) and (b). 4. Thus, the accused needs to establish, on the balance of probabilities, that he is a native title holder and that he has a native title right to fish in order to prove that his conduct fell within the scope of that right as well as the other facts relevant to section 211 which can be engaged only if relevant native title rights and interests continue to exist [26] . "Native title" takes its meaning from section 223 of the NTA and to exist, the following conditions must be fulfilled: 1. native title rights and interests must be possessed under the traditional laws acknowledged and the traditional customs observed by a native title group, being the persons who, according to their traditional laws and customs, hold communal, group or individual rights and interests in relation to land or waters; 2. that group or those persons, by those laws and customs, must have a "connection" with the land or waters. The laws and customs of the native title group must have a normative content deriving from that body of traditional laws and customs existing before sovereignty. The normative system of traditional laws and customs must have been observed continuously by the native title group as a whole; and 3. the native title rights and interests must be recognised by the common law. This requires an examination of whether the common law, or any valid legislative executive act (such as the grant of interest in the relevant land or waters) is inconsistent with the continued existence of the rights and interests that owe their origins to aboriginal law and custom. 1. It is not sufficient for the court to only find or determine that native title rights and interests exist. A person claiming to be a native title holder must establish that he or she is a member of the particular group holding the communal rights in addition to the other matters referred to in paragraph 97 of this judgment. 2. In order to satisfy the provisions of section 211(1)(a), the accused must identify the particular native title rights and interests upon which he relies. If the offending conduct does not form part of a class of activity that represents the exercise or enjoyment of the native title right then in such case section 211(1)(a) would not be engaged. 3. The accused must also satisfy the court that firstly, under traditional laws acknowledged and traditional customs observed, the accused was entitled to engage in the conduct which brings him within the purview of the charges under the FM Act in the way it was carried out and when it was carried out, and secondly, that such conduct was carried out in the exercise of native title rights and interests held by the accused. 4. Additionally, a person claiming protection from liability as a native title holder must show that the purpose of the relevant activity was to satisfy personal, domestic and non-commercial communal "needs". 5. The terms "commercial", "communal" and "needs" are not defined in the NTA. There is authority to advocate that "commercial" suggests an involvement in business or trade [27] . I am cognizant of the definition of those words as they appear in the Macquarie Dictionary. 6. Akiba (supra) is authority for the proposition that native title rights and interests can comprise a right to access resources and take for any purpose resources in the native title claim area. The right could be exercised for commercial or non-commercial purposes. 7. In Banjima People v Western Australia (No 2) [2013] FCA 868; (2013) 305 ALR 1 the court stated: Unlike the position in Akiba (No 3), it is not open to conclude on the evidence in this case that the claimants were entitled to take all manner of resources from the claim area. … The situation is not a kin to the circumstances in which the claimants in Akiba (No 3) were found traditionally to take whatever resources they found at sea and were apt to trade and use it however they could. As much as the claimants and especially their forebears at sovereignty may have exercised Dominion overall that existed in their traditional territory, native title law under the NTA requires the identification of rights in relation to land and water is exercised under traditional law and custom [28] . 1. It was submitted for the prosecution that in the event that a native title right to take fish for commercial purposes exists for the purposes of section 223 of the NTA, the accused must also establish that the additional requirement in section 211(2)(a) namely that the native title holders purpose was to satisfy their personal, domestic or non-commercial communal needs was also satisfied. The question of whether the activity is commercial is a separate question to the existence and content of the native title rights. Thus if the accused was exercising native title rights for something other than personal, domestic or non-commercial communal needs, such conduct does not fall within the ambit of section 211(2)(a). 2. The accused did not call any expert evidence as part of his case. Nevertheless I am cognizant of a report prepared by Dr Kwok, a consultant Anthropologist, in relation to an unrelated matter in the Local Court case of P v Carberry and Stewart (unreported, Local Court, 2013/222966 & 2013/194121) and which was tendered in those proceedings. That report dealt with taking abalone but to the extent to which her report addresses considerations of native title there appeared to be no objection to my consideration of that report. 3. As His Honour observed in Carriage (supra) which was a matter involving the removal of abalone, the report commented on: "…the pre-sovereignty period progressing through first contact, association with country, tenure and descent, contemporary identity, kinship, marine economy, traditional fishing practices, the foundations of a right to take fish, and genealogical connections. For the purpose of those proceedings, it was accepted that Aboriginal people exploited a wide range of available resources of the sea and shoreline". 1. His Honour continued: "The salient points of Dr Kwok's oral evidence are reproduced in a narrative; The Jerrinja community was originally Roseby Park. It is a south coast community of the Yuin Nation. There has been a lot of interaction between the Jerrinja people and other communities such as Wreck Bay. There is a strong orientation towards the sea and to kinship. Aboriginal people always valued abalone. Aboriginal society was never static, it evolved. South coast people used fishhooks made out of shells before Governor Phillip and they progressed to steel hooks but still used them in a traditional way. Every society evolves for example Scottish kilts or Italian pasta. No society remains unchanged. Trade was already an existing practice in Aboriginal society. It was not a strange thing for people to engage in trade. There were no boundaries in relation to taking of a resource. For example, there would be seasonal differences and the size of the gathering. A funeral could have two hundred to four hundred people attending. You can't overtax a resource. You must monitor the resource. The main consideration is not wasting a resource. You take what's appropriate for the occasion. When people are camped at a beach, seafood ideally provided a smorgasbord of abalone, fish, lobsters and pippies. For example, they might make a pippi curry. There is an expectation to share. There was a high degree of oral instruction of the particular rules regarding gathering of abalone. They shouldn't take them too small or too large; they should leave the breeders alone. But there is no consistent teaching on that. It's not entirely uniform. A general precept is to be respectful to the resource. An example of taking in excess of what is needed would be taking it and then leaving it dead on the shore. Aboriginals don't take it for the sport of it; for the hunt. It's important to rotate harvesting and not go to the same location every day. There is a traditional difference of opinion whether abalone is shucked at the shoreline or cooked in the shell. Some comment is warranted on the matter of trading marine resources. 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. Navigators Bass and Flinders encountered Aborigines in the Port Kembla vicinity in 1796 and were offered water and fish for which they gave a few loose potatoes and two pocket handkerchiefs. In 1811 there was barter at Jervis Bay between Governor Macquarie's visiting party, fish for tobacco and biscuits. In 1818 on his way overland to Jervis Bay, Throsby traded fish for fishhooks. In 1827 the Sydney tribes lived chiefly by fishing, being supplied with hooks and lines by individuals in the town, to whom they (brought) all the fish they catch, receiving payment in old clothes, bread and rum." There was no money involved. No money does not make a dividing line to make it beyond the laws and customs. It was a way of accessing other things that they didn't have. Money was absorbed and used in their own way. Aboriginal people adapted. It's not a problem for Aboriginal people to take a resource for their benefit. It is a process developed post sovereignty. They don't have to consume it themselves. Traditional laws and customs don't support operating a commercial business. Most Aboriginal people don't dive for money; but using money from the sale is a right. To take resources is not just for hand to mouth subsistence." If commercial fishing brought some monetary rewards, fishing and gathering for household consumption continued to be a vital element of Aboriginal subsistence. With large families and meagre monetary resources most families continued to rely substantially on the harvest of seafoods. These resources continued to form an important contribution to the economy today…Today the harvest of seafood remains vitally important, not just as a contribution to diet and economy, but as an activity which is central to Yuin identity.'" She said, "Aboriginal people have a right to fish for all purposes regardless of licensing regimes". Annexed to Dr Kwok's report was a sketch drawing by a person identified only as Mick of Ulladulla. It reflected the life of Aboriginal people on the mid-south coast during the 1870s and 1880s. As with all drawings, the images depicted are open to interpretation. The evidence primarily focussed upon the lower left quadrant. Over prosecution objection, it was claimed that the drawing showed several avenues for earning a living such as bringing various goods for sale, the selling of tea-tree brooms, and involvement of women in the processing of abalone presumably for the Chinese market. Dr Kwok was cross examined on the drawing and accepted in part that the drawing was "up to the viewers perspective" and "there may be different interpretations". While conceding that the pots could have been boiling lobsters or something other than abalone, she was firm in her belief that it was abalone depicted on the drying racks. She said, "the drying racks could be (drawings of) blankets, but I don't think they are, I believe they are boiling and drying abalone for the Chinese market." In researching her report she gave evidence of Aboriginal Elders telling her that "abalone was taken for the Chinese market, to be taken to Sydney to be sent to China". In her report Dr Kwok stated, "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." That opinion is hard to reconcile with her oral evidence where she accepted that the processing of the abalone in the manner depicted of boiling and drying was "not the way Aboriginal people prepared abalone" and "it's not consistent with Aboriginal traditional food processing". Dr Kwok gave evidence that Aboriginal people adapted to a changing world by, in effect, becoming commercial fishers gathering abalone for sale or barter. She said, "my views are substantially consistent". In evidence she said, "It was not a strange thing for people to engage in trade. There were no boundaries in relation to taking of a resource." But in her report, she opined, "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 that abalone will cry if taken away 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 relation to the actions of the accused Dr Kwok said "part of the cycle is to shuck the abalone and return the shells to the sea" she accepted that throwing shells and guts onto rocks would deprive sea creatures of the guts and "may not be consistent with part of the cycle". 1. In Carriage (supra), His Honour was not satisfied that the evidence of Dr Kwok went beyond the identification of a series of practices that had continuously evolved over the last 250 years observing: "Dr Kwok spoke about the need to preserve resources and not over fish any resource and to paraphrase her words, "take only what is appropriate for the occasion" and "utilising things within the Aboriginal people's own cultural frames." 1. In the present matter, the accused had clearly conducted the fishing operations with the intention to sell the fish to market. It would appear on the evidence and there is otherwise no evidence to the contrary that the accused at no stage turned his mind to conserving the resource, in this case, the silver trevally, during any of the ocean hauling activities which bring him to the attention of the court. The accused gave clear evidence of a practice and an intention to collect fish for sale. I am satisfied on all of the evidence which I do accept that his conduct was undertaken for commercial gain. 2. I discern from the evidence adduced by the accused that I should accept the proposition that as an indigenous person, he may take fish, in this case silver trevally, for any reason, including commercial purposes and that it would not otherwise result in an over exploitation of that resource. For the accused to harvest silver trevally for an unregulated purpose including commercial sale would result in an unbridled right to fish for evermore which is the mischief I would have thought that the legislation was designed to address. 3. As has been discussed, whether the relevant fishing activity was done in the exercise or enjoyment of native title rights and interests, depends upon whether it was done in accordance with traditional laws and customs. Having regard to the evidence given by the accused, I am satisfied that he intended to embark on an enterprise for reward. I am satisfied a native title holder cannot obtain a resource that can be sold or exchanged in order thereafter to meet a personal or communal need. On the available evidence I am not satisfied that his conduct fell within customary and recognised rights. 4. Dr Kwok pointed out the main stricture was utilising resources according to cultural settings. The evidence of the accused contrasted with traditional systems of respecting and conserving a resource. The accused described a consistent routine of taking abalone for the purpose of making money. He did so to earn an income consistent with any other sole trader business. I accept the view of Counsel for the prosecution in that, if the accused's conduct was considered to fall within section 211(2)(a) it would give the qualification implied by the wording of that section, no work to do. The qualification being that it does not include a commercial activity. 5. I have already directed myself that the prosecution normally bears the burden of proof [29] . As the court in Carriage (supra) observed: However, the High Court has noted that "it has long been established that it is within the competence of the legislative to regulate the incidence of the burden of proof" [30] . In some instances, Parliament may reverse the onus. In Williamson -v- Ah On (1926) 39 CLR 95 the Court accepted that it may be justified in some circumstances to reverse the burden of proof; "the broad primary principle guiding a Court in the administration of justice is that he who substantially affirms an issue must prove it". In Williamson it was observed that an accused who relied on the operations of section 211 would have knowledge of the facts relevant to fulfilment of the conditions set out in that section. There is a distinction between an evidential burden and a legal burden of proof. The evidential burden is the responsibility to provide enough evidence to have the court consider the matter. It means adducing evidence that suggests a reasonable possibility that the matter exists. In R -v- Hunt (1987) AC 352 (Hunt), the court said, "the discharge of an evidential burden proves nothing – it merely raises an issue". The legal burden is the responsibility to satisfy the court to the appropriate level of proof. It means proving the existence of a matter. An offence may be drafted so that the accused bears only the evidential burden or both the evidential and legal burdens. The case law concerning statutory exceptions is complex and usually highly specific to the individual statute under consideration. Where it is unclear whether a statute imposed a burden of proof on an accused, the court in Hunt said look to the mischief sought to be remedied by the Act. The case of R v DPP, ex parte Kebilene [2000] 2 AC 326, 378 whilst illustrating the court's interpretation of certain acts which placed only the evidential burden on the defendant, the court explained that the shift in onus of "a legal burden of proof requires the accused to prove, on a balance of probabilities, a fact which is essential to the determination of his guilt or innocence. It reverses the burden of proof by removing it from the prosecution and transferring it to the accused". Section 211 is silent as to where the burden of proof lies. In Mason -v- Tritton & Anor NSWSC 34 NSWLR (1994) 572 the accused relied on the defence that he enjoyed a common law native title right to fish in the ocean near Narooma on the far south coast of NSW. It was held that the accused had failed to provide enough evidence to establish native title. It was observed that native title has its origin in and is given its content by traditional laws acknowledged by, and the traditional customs observed by, the indigenous inhabitants of a territory. The Court observed that a person making a native title claim faced a difficult evidentiary task. It was appropriate that claimants be put to proof of their claims because doing so protected the environment. Traditional laws and customs in place before 1788, the date the Crown first claimed sovereignty in NSW, must be shown to have continued uninterrupted since that time. Evidence of practices developed after that time for example, selling or bartering with Europeans after settlement should be given no weight when assessing the accused's native title claims if those actions are inconsistent with traditional laws and customs. Several references were made to the requirement that the accused establish that his conduct fell within the exemption as a result of the onus having shifted from the prosecution. In Derschaw -v- Sutton (1996) 17 WAR 419 the accused used nets to take fish and were charged with having possession of fish taken in contravention of Western Australian state law. There existed a ministerial prohibition forbidding anyone, other than professional fishermen with licences, from taking fish by nets other than nets prescribed. The nets used by the appellants were not so prescribed. The appellants relied on a defence that they were exercising their native title rights to fish. In dismissing the appeal, the Full Court of the Supreme Court of Western Australia determined among other things that the evidence 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. In Dillon -v- Davies (1998) 145 FLR 111 the accused relied on the defence of native title. The court at first instance held, consistently with Mason, that the accused had to establish that the fishing of abalone was done in the exercise of traditional laws and customs. In Stevenson -v- Yasso [2006] 2 Qd R 150 the Queensland Court of Appeal held by majority that the legal onus of establishing a defence under section 14 of the Fisheries Act 1994 (Qld), which provided that an Aborigine may take fisheries resources under Aboriginal tradition, to a prosecution for unlawfully possessing fishing apparatus lay, on the accused. If the doing of an act is subject to the removal of a prohibition, then the onus of establishing facts of the same will lay on the accused. I agree with the submission that the accused must carry both the evidential and legal burdens of proof on the balance of probabilities. 1. I am likewise not satisfied that the accused has discharged the legal and evidentiary burden which he carries to establish on the balance of probabilities the Yuin Nation traditional laws and customs as recognising his claimed right to include spontaneous taking by any Aboriginal person of large numbers of silver trevally from whatever location for anticipated sale to market. Such evidence is essential to any conclusion that a native title right existed and that it was being exercised by the accused on both the 11th and 21st November 2016. Determination of the fifth issue 1. The accused failed to provide sufficient evidence to substantiate his claim that his taking of the trevally was the exercise of a traditional native title right. The accused's evidence failed to meet the requirements of section 211. The evidence was not sufficient to establish that the ocean hauling of the trevally was conducted in accordance with the exercise of any legitimate native title right nor was it for the purpose of satisfying personal, domestic or non-commercial communal needs. 2. I find that there is no evidence which would allow me to find that the accused engaged in conduct in a manner consistent with traditional laws and customs designed to recognise and preserve traditional means of living. There was no corroborative evidence adduced by the accused that taking a large quantity of silver trevally for the purpose of sale was consistent with Yuin Nation customs or traditions. Sixth Issue – Does the defence of honest and reasonable mistake of fact arise? 1. The accused did not raise this issue specifically but I am satisfied from the evidence which he adduced and from replies to questions put to him by fisheries officers that it is an appropriate to address the question. 2. The accused has at all times maintained that his commercial fishing licence allowed him to operate under native title. The defence of honest and reasonable mistake of fact applies only where a mistake of fact is made about an essential factual element of the offence charged. The honest and reasonable, but mistaken belief must be with respect to a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent [31] . 3. The elements necessary to successfully establish the defence were succinctly summarised in Environmental Protection Authority v Unomedical Proprietor Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198 per Pepper J. 4. It is important to distinguish between mistake of fact and mistake of law. In this regard the authority of Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 is instructive. In that matter the respondent held a fishing license under Western Australian legislation. Acting on incorrect information provided to him by a fisheries officer, the defendant fished in an area to which he was not entitled by law to do. On the basis of the information provided to him, he held an honest but mistaken belief that the licence permitted him to fish in that area. The court held unanimously it was a mistake of law and therefore did not afford him the defence. A belief in the lawfulness of one's conduct is a belief about a matter of law and, as such, cannot afford a defence. Likewise a mistake as to the existence of native title is a mistake of law [32] . 5. On all of the evidence which I do accept I am not satisfied that the accused held an honest and reasonable but mistaken belief in a fact or facts going to the elements of the offences for which he is charged. Indeed the accused appears to be relying on a general understanding or assumption about the entitlements and endorsements held under the commercial fishing licence and his belief that his conduct fell within native title so as to comply with the relevant provisions of the NTA. Verdicts 1. With respect to sequence 1, 5 6, and 7 being charges of unlawfully using a net for taking fish (using a hauling net (general-purpose) for taking fish without an endorsement) contrary to the provisions of section 24 (1) of the FM Act [33] , I find that between 10.00am and 11.30am on 11 November 2016 (sequence 1) and at the relevant times on 21 November 2016 (sequences 5, 6 and 7) the accused, who was then not a holder of a hauling net (general purpose) endorsement, used a net, namely a hauling net (general-purpose) for taking fish which was not declared by the Regulations to be a lawful use. 2. With respect to sequence 3 being a charge of possess fish illegally taken (namely, silver trevally) contrary to the provisions of section 35(1) of the FM Act, I find that at approximately 11.20am on 11 November 2016 the accused possessed fish, namely silver trevally which were taken in contravention of the provisions of section 20(3)(b) of the FM Act [34] . 3. With respect to sequence 4 being a charge of take fish for sale - authorisation not appropriate contrary to the provisions of section 102(1) of the FM Act [35] , I find that the accused between 10.00am and 11.30am on 11 November 2016 took fish for sale from waters to which the FM Act applied, namely, silver trevally, without being authorised to do so by a duly endorsed commercial fishing licence. 4. With respect to sequences 9, 10 and 11 being charges of harming or attempting to harm an animal in a sanctuary zone contrary to the provisions of section 41 of the MEM Act [36] , I find that the accused did harm an animal (fish) in a sanctuary zone of a marine park namely, the Hare Bay Sanctuary Zone of the Jervis Bay Marine Park between 11.23am and 11.35am on 21 November 2016 without the consent of the Minister. 5. With respect to sequence 12 being a charge of possess fish illegally taken contrary to section 24(1) of the FM Act, I find that the accused did possess fish which were illegally taken with a hauling net (general purpose) between 9.50am and 12.20pm on 21 November 2016. 6. Accordingly, I find that the prosecution has established each of the charges against the accused to the requisite standard. Magistrate M O'Brien Nowra Local Court ********** Endnotes 1. (1998) 197 CLR 250; [1998] HCA 68 2. See par. 90 of this judgment 3. Exhibit 7 4. which came into effect on 5 February 2007 upon the commencement of the Fisheries Management (Ocean Hauling Share Management Plan) Regulation 2006 – see s 60 of the FM Act which provides for the making of a management plan for a fishery by regulation. 5. From the statement of Catherine Anne Foster dated 3 August 2020 and from evidence adduced from the accused 6. See DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523, [1985] HCA 43; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185, [1999] VSCA 120. 7. which is referred to in Div 3 and 4 of the MEM Act 8. Cl 3.2 and Div 11, Map 8 Hare bay of the MEM (MR) Regulation 9. S 4(1) of the MEM Act 10. Cl 1.3 of the MEM(MR) Regulation 11. for this purpose is to be observed that clause 3 (one) of schedule 2 to the MEM act provides that a Marine Park under the former act immediately before the repeal date is taken to be a Marine Park declared under the MEM act with the same assigned to the Marine Park under the former act 12. see Part 3 and clause 1.1 13. Clause 3.2ff 14. Clause 1.7 of the MEM (MR) Regulation 15. A community of Aboriginal people – see Transcript of 17 November 2021 at page 71 lines 13-14 16. Transcript – 17 November 2021 at page 63 lines 30-40 17. Ibid at page 64 lines 16-18 18. Exhibit 7 19. Transcript of 17 November 2021 at page 65 lines 15-24 20. Ibid at page 68 21. [2018] SASCFC 23; 231 LGERA 13, at [118] 22. At [22] and [32] 23. at 257 – 259 24. Gleeson CJ at 574E, 574F 25. At [151] per Fryberg J; [97] per McPherson JA 26. Akiba (supra) 27. Wandarang v Northern Territory (2000) 104 FCR 380 at [99] per Olney J – see also Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169 at [603] 28. At [783] 29. Woolmington -v- DPP [1935] AC 462; see also Lee -v- The Queen (2014) 253 CLR 455; [2014] HCA 20 30. Kuczborski -v- Queensland (2014) 254 CLR 51; [2014] HCA 46, 240 31. Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28 32. see Andrews v Ardler [2012] NSWSC 845; (2012) 266 FLR 177 at [41] 33. read with Part 3 of the FMG Regulation and clause 13A of the appendix to the Fisheries Management (Ocean Hauling Share Management Plan) Regulation 2006 34. read with s20(3)(b) of the FM Act, Schedule 1 of the FM Act and clause 9(1)(b) of the FMG Regulations 35. read with section 66 of the FM Act 36. read with clause 1.11(1)(a) of the MEM(MR) Regulation 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: 17 November 2022