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Haigh, David John --- "Fishing War in the Torres Strait - Round Three: R v Gesa and Nona; Ex parte A - G" [2000] IndigLawB 59; (2000) 5(2) Indigenous Law Bulletin 17

Fishing War in the Torres Strait – Round Three:
R v Gesa and Nona; Ex parte A-G

R v Gesa and Nona; ex parte A-G

Queensland Court of Appeal

[2000] QCA 111

Davies and Thomas JJA, Wilson J

4 April 2000

By David John Haigh.

This case started when Gesa and Nona, Merriam men from Mar Island, took fish from some commercial fishermen at the point of their crayfish-spear. They were charged with theft with violence under the Criminal Code Act 1889 (Qld) (‘the Criminal Code’). At a committal hearing before Justice Healy in the Cairns District Court on 12 April 1999, Gesa and Nona’s actions were found to be justified under the common law defence of ‘honest claim of right’, those rights being traditional fishing rights (including fishing for commercial purposes) protected under the Torres Strait Treaty[1] between Australia and Papua New Guinea, the Torres Strait Fisheries Act 1984 (Qld) and the Queensland Fisheries Act 1994 (Qld).[2] On 16 August 1999, Justice White of the Cairns District Court upheld Justice Healy’s directions and placed a stay on proceedings pending application to the Court of Appeal.[3] The Crown’s application to the Court of Appeal was accepted and heard by Justices Davies, Thomas and Wilson in the Queensland Supreme Court on 22 February 2000.

The Court found that Justice Healy had, on the evidence presented at the committal hearing, merely ruled that the Crown could not satisfy a jury beyond reasonable doubt that the two accused had not been acting under an honest claim of right. Not, as assumed by Justice White, that there was no case to answer.[4]

This distinction has important implications. Section 592A of the Criminal Code gives a judge jurisdiction to give a direction or ruling ‘as to the conduct of the trial’ once an indictment has been presented but before the commencement of the trial. The Court held that this section enables judges to make rulings on questions of law which result in the termination of the proceedings prior to the trial. Such a ruling will, however, only be possible in cases where the facts are not disputed and those facts are insufficient to support the charges laid. Because the Crown did dispute the facts, the discretion to dismiss the Crown case against the accused was not available to Justice Healy at the directions hearing.

Their Honours allowed the appeal, setting aside the Supreme Court order staying the proceedings. The case is now back in the call-over list in the Cairns District Court for Round Four – the trial. A hearing date is expected in the first half of 2001.

The case will no doubt raise again the issue that the defendants exercised an honest claim of right when they took the fish believing that that they had those rights as indigenous persons and as beneficiaries of the provisions of the Torres Strait Treaty. The case stands as a reminder that the issue of fishing rights in the Torres Strait is a matter long overdue for negotiated resolution between governments, professional fisherpersons and Torres Strait Islanders.

David John Haigh is Senior Lecturer at the School of Law, James Cook University, Townsville.

[1] Treaty Concerning Sovereignty and Maritime Boundaries in the Area Between the Two Countries, including the Area Known as the Torres Strait and Related Matters, 18 December 1978, Australia–Papua New Guinea, 1429 UNTS 207, 1985 ATS 4, 18 ILM 291, (entered into force 15 February 1985) (‘Torres Strait Treaty’).

[2] See David John Haigh, ‘Fishing War in the Torres Strait: The Queen v Benjamin Ali Nona & George Agnes [sic] Gesa[1999] IndigLawB 60; (1999) 4(22) Indigenous Law Bulletin 20.

[3] See David John Haigh, ‘Fishing War in the Torres Strait – Round Two’ [1999] IndigLawB 82; (1999) 4(24) Indigenous Law Bulletin 18.

[4] Ibid.

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