DISTRICT COURT OF QUEENSLAND

CITATION:	Sabatino & Anor v Slatcher [2020] QDC 308	
PARTIES:	PATRICK JOHN SABATINO
(first appellant)
and
JAFFA GODFREY AHWANG
(second appellant)
v
MATTHEW JOSEPH SLATCHER
(respondent)	
FILE NO:	84/2019 and 85/2019	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Mackay	
DELIVERED ON:	3 December 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	20 October 2020	
JUDGE:	Richards DCJ	
ORDER:	The application to adduce fresh evidence is denied.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – where the appellants were found guilty of an offence under s 88(2) of the Nature Conservation Act 1992 and fined $2,000 – where the men are from the Torres Strait Island – where the men had been fishing and took a turtle for a wedding in accordance with traditional and customary methods of hunting – where the men do not have Native Title over the area – where the appellants seek to agitate whether they had an honest claim of right – where the appellants seek to adduce fresh evidence to establish an honest claim of right – whether the justice of the case calls for the admission of fresh evidence – where the appellants were unable to present evidence properly due to being unrepresented at the initial hearing – whether an application to adduce fresh evidence should be allowed	
LEGISLATION:	s 88(2) of the Nature Conservation Act 1992
s 223(2) of the Justices Act 1886	
CASES:	Akiba on behalf of the Torres Strait Islands of the Regional Seas Claim Group v The State of Queensland No 2 [2010] SCA 643
Gallagher v R (1986) 160 CLR 392
Native Title Act 1993 (Cth)
Powell v Chief Executive Officer of Customs [2012] QCA 338	
COUNSEL:	M Duncan for the applicant
Benedict J Power for the respondent	
SOLICITORS:	Torres Strait Island Counsel for the applicant
Litigation Branch of the Department of Environment and Science for the respondent	

Introduction
[1]	On 10 September 2019, the appellants were found guilty of an offence under s 88(2) of the Nature Conservation Act 1992 and fined $2,000.  That Act provides:
“A person must not take a protected animal unless the person is an authorised person or the taking is authorised under this Act.”
[2]	The two men had been fishing at Murray Creek Bay on 16 April 2017 and took a turtle for a wedding in accordance with traditional and customary methods of hunting which they had exercised themselves in that area for over 40 years.  They are men who hail from the Torres Strait Islands. It is conceded that they do not have native title over the area. Title is held by the Yuwibara people.  They do however seek to agitate whether they had an honest claim of right and to do that they seek to lead fresh evidence from the two appellants, Malawap Nona and Dr Philip Clark.  
[3]	The evidence sought to be led is as follows:
Malawap Nona
Malawap Nona is the chairperson of Malu Lamar, the registered Native Title Body Corporate for Sea Country within the Protected Zone of the Torres Strait.  His evidence would be to the effect that there is shared zones in the Torres Strait which it is submitted is acknowledged in the case of Akiba on behalf of the Torres Strait Islands of the Regional Seas Claim Group v The State of Queensland No 2 [2010] SCA 643.  
Dr Philip Clark
Dr Philip Clark is an anthropologist. Dr Clark says if the Court will allow fresh evidence, he would research and prepare a report to determine if there are rights and customs pertaining to Torres Strait Islanders living in the Mackay area.
Mr Ahwang  
Mr Ahwang would give evidence that his grandfather, his father and his uncle were given permission to hunt turtle and dugong outside traditional waters and he has also always done so with the approval of the local Aboriginal Traditional Owners.
[4]	It is not known exactly what Mr Sabatino would say but I will assume for the purposes of the argument that he would say something similar to Mr Ahwang.  
[5]	The test to be applied in relation to new evidence on appeal is found in s 223(2) of the Justices Act 1886 provides:
“However the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the Court is satisfied there are special grounds for giving leave.”
[6]	The Court of Appeal observed in Powell v Chief Executive Officer of Customs [2012] QCA 338 of 41:
“The appeal process is not a forum for attempts to litigate cases afresh in a manner different from that which was unsuccessful at first instance.  As was observed in Pavlovic v Commissioner of Police [2007] 1 Qd R 344 the consideration that evidence could with reasonable diligence have been produced at trial;
‘… reflects he primary importance of the trial in the administration of justice.  A trial cannot be regarded as a dress rehearsal or as a first step in a process which inevitably leads to an appeal and a possible retrial’”.
[7]	The respondents rely on Gallagher v R (1986) 160 CLR 392 for a submission that the overarching consideration in cases such as this is whether the justice of the case calls for the admission of the fresh evidence:
“The circumstance of cases may vary widely and it is undesirable to fetter the power of Courts of Criminal Appeal to remedy a miscarriage of justice.  I respectfully agree with the statement of King CJ in Reg v McIntee (1985) 38 SASR 432 at p 435, that ‘appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand’”.
[8]	The appellants acknowledge correctly that they do not have a claim to native title as they are not the traditional owners of the land.  They seek to claim that there is the existence of reciprocal rights arising out of the affiliation of saltwater people generally and that this is a law that entitled them to kill turtles in a traditional manner.  It is submitted that this in turn would establish a s 22 Criminal Code 1899 (Qld) honest claim of right defence and the appeal would be allowed.  They submit that the appellants were unable to present this evidence properly as they were unrepresented at the hearing of this matter. 
[9]	It can be seen from the initial hearing of this matter that the evidence of the appellants establish that they have a long connection with the Mackay area.  Mr Ahwang’s grandfather moved here when he was a young man and they have lived in and around the area since.  They have, it seems, previously fished for turtle where necessary with the permission of the traditional owners of the land.  It was submitted by the appellants the permit system that was granted by the traditional owners led the Magistrate into error because it is acknowledged by all the parties that the rights under the Native Title Act 1993 (Cth) and the Native title determination are rights that cannot be transferred to others by permit. 
[10]	 However, the fact that the appellants did obtain permits from the traditional owners of the land to fish indicates that they were aware they did not have a right that existed on their own to fish the waters for turtles.  Further, the evidence of the appellants was that they had sought a permit and been denied it so that they knew that the traditional owners of the land were not giving them permission to fish for the turtle on this particular occasion.  
[11]	They now seek to assert a general right under Customary Law to fish the waters.  It is true to say that the case of Akiba has recognised that in the Torres Strait Islands there may be reciprocal rights which do not amount to native title rights, but in this case given the evidence already given by the appellants, it would seem that they did not have a belief that they have a right to fish without the permission of the traditional owners and in any event, the fact that the traditional owners had denied permission would be a factor against an honest and reasonable belief that reciprocal rights existed.  Reciprocal rights can only exist as long as both parties acknowledge their existence.  That would seem to have not been the case on this occasion.
[12]	 In those circumstances the application to adduce fresh evidence should be denied.