Derschaw v Sutton P44/1996 [1997] HCATrans 158 (30 May 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P44 of 1996

B e t w e e n -

DWAINE WILLIAM DERSCHAW

Applicant

and

ROBERT KEITH SUTTON

Respondent

Office of the Registry

Perth No P45 of 1996

B e t w e e n -

AUBREY ELLIOT CLIFTON

Applicant

and

ROBERT KEITH SUTTON

Respondent

Office of the Registry

Perth No P46 of 1996

B e t w e e n -

CASEY CHRISTOPHER MURPHY

Applicant

and

ROBERT KEITH SUTTON

Respondent

Applications for special leave to appeal

DAWSON J

TOOHEY J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 MAY 1997, AT 12.14 PM

Copyright in the High Court of Australia

_____________________

MR L.W. ROBERTS-SMITH, QC: May it please your Honours, I appear with MS A.M. SHEEHAN for the applicants in these matters. (instructed by Aboriginal Legal Service of Western Australia (Inc))

MR R.E. COCK: If the Court pleases, I appear for the respondents. (instructed by Crown Solicitor for Western Australia)

DAWSON J: Yes, Mr Roberts-Smith.

MR ROBERTS-SMITH: Each of the seven special leave questions set out at page 129 of the application book are of course important and, in our submission, would be squarely raised on this appeal, but perhaps the most significant issue we seek to have decided on this appeal is the proposition that a different requirement of proof exists where a person is called upon to raise a native title right to fish as a defence to a criminal prosecution than it does in a claim for a declaration of native title rights - that is, where such a claim is sought to be made out against the whole world.

TOOHEY J: The Court would not answer that in vacu, would it? It seems to me that the principal difficulty in the way of a grant of special leave here is the lack of a firm evidentiary foundation upon which the Court could examine these questions. Unless that foundation was present, then the questions are academic really.

MR ROBERTS-SMITH: I appreciate what your Honour is saying, but the point we would make in response to that is that the question of the sufficiency of the evidentiary basis does of course turn very much on the requirement of evidence to establish the basis.

TOOHEY J: Yes, I see that.

MR ROBERTS-SMITH: That is the issue which is raised very much centrally in this proposed appeal. There is, in our submission, a dearth of Australian authority on the point to the extent that your Honours on the High Court talked about requirements of proof of native title in Mabo [No 2] 175 CLR 1. Of course, each member of the Court was doing so in relation to the substantive claim in that case and not at all in any connection with proof of native title for what we would say is a much lesser forensic situation, namely a defence to a criminal prosecution.

The principal error of the majority of the Full Court here was, in our submission, in failing to appreciate that there is a distinction in law between the requirements of proof in those two different circumstances and different purposes. His Honour Justice Wallwork in his dissenting judgment recognised the distinction at pages 88 and 89 of the application book.

DAWSON J: Could I just put this to you, that there is no doubt about the principles to apply, that it was incumbent on your clients to raise an evidentiary basis for their defence. That having been done, it was then incumbent upon the prosecution to establish the offence beyond reasonable doubt including taking into account the defence which your clients sought to raise. But what was held was that there was not a sufficient evidentiary basis established.

MR ROBERTS-SMITH: Yes, your Honour.

DAWSON J: We are not in any doubt about those principles, are we?

MR ROBERTS-SMITH: No, those principles are principles we put to the court below.

DAWSON J: Yes.

MR ROBERTS-SMITH: What we do say, however - and it comes back to the question raised by Justice Toohey - was that in looking at the question whether or not there was sufficient evidence raised by the applicants to raise the issue of their native title and inconsistency and so on, their Honours, in the Full Court below, in the majority, measured that evidence against the wrong yardstick. The question of what yardstick they should have used to evaluate evidence of a native title right to fish in the circumstances where that is asserted as a defence to a prosecution as opposed to a claim in rem, for example, is the very issue that we seek leave to argue on the appeal. As I say - - -

DAWSON J: I appreciate that. If I may put this to you, so we can isolate what we are arguing about. The yardstick of which you speak may be something that is very important and raise some of the questions which you raise in your statement of the special leave questions, for example, whether in proof of a claim for native title it is necessary for a claimant to show biological descent from the tribe, clan or group which has the relevant right; questions such as that. Those are questions undoubtedly of importance but they are not questions which this Court could usefully consider in the light of the evidence which, on any view, is pretty scant in this case. That is what I put to you for your comment.

MR ROBERTS-SMITH: I have to accept, your Honour, that the evidence in relation to those matters was pretty scant. We concede that. What we do say is that it was indeed sufficient, as a matter of law, to enable the magistrate to conclude that those matters of fact had been made out. Indeed, it is important to remember that it was the magistrate, at first instance, who in fact was satisfied of those matters. Not indeed merely in an exculpatory sense as being left with a reasonable doubt - - -

DAWSON J: That, of itself, does not raise any question of principle. The magistrate may have been right, the Court of Appeal may have been right as to whether it was or was not sufficient to raise the defence. That is not something which attracts special leave; it is the other very important questions which you set out on page 129 which may well attract special leave if this were a suitable vehicle. What would be put against you, it is not a suitable vehicle because those questions cannot really be considered in the abstract and there is not a sufficient factual basis in this case.

MR ROBERTS-SMITH: Your Honour, to the extent that his Honour Justice Franklyn, who of course gave the principal judgment for the majority here, identified various matters which in his view had to be established before any claim of this kind could be raised, even in the evidentiary sense. Our submission is that those matters did in fact not have to be made out. Those are covered in our written submissions and I do not want to take your Honours through that, but it is important to appreciate that his Honour, for example, at the bottom of page 65 of the application book, line 35, speaks of:

that evidence does not go to all of the matters to be established to make out native title -

At page 66, again just above line 35, his Honour, for example, said:

it did not go any way to demonstrating, in my view, in respect of any of them that he is a biological descendant of an indigenous clan or group who exercised a right to fish.....in an area in which Six-Mile Creek was situated, or even limited to Six-Mile Creek, immediately before the Crown claimed sovereignty over the area. Even had it done so, it failed to demonstrate continuous and uninterrupted observance of the relevant traditional laws and customs -

If I might pause there, for example, our submission, one of the submissions we would seek to make is that, first of all, there was sufficient evidence, as the magistrate accepted, to raise the proposition that the relevant clan, that is the Ngmal Ngmal and the Kooriata, were in the area before settlement and were exercising a native title right to fish. That much having been done, our argument would be that there is a presumption of continuity and it was not incumbent upon the applicant then to demonstrate, as his Honour Justice Franklyn seemed to require, for example, that there be positive evidence as such going to the issue of continuous and uninterrupted observance of the relevant traditional laws and customs, although we would say, indeed, there was evidence of that anyway. But as a requirement, as a legal requirement we would seek to argue that that is not right, that the Full Court proceeded on a wrong view of the law in these important respects.

TOOHEY J: Mr Roberts-Smith, when you look at the evidence upon which the magistrate relied, it is very, very slim really, is it not? It is on pages 6 to 7 and no matter how low you put the evidentiary standard in order for the Crown to carry the onus of proof, it would be very difficult to resolve these important questions of native title upon that material, very difficult indeed.

MR ROBERTS-SMITH: In our submission, perhaps the contrary is the case. Perhaps the very case in which the argument ought to be put is one in which the evidence is admittedly scant because that is the issue which has to be determined, how much evidence is sufficient as a matter of law to enable the court to come to a finding.

DAWSON J: But the questions themselves raise questions of fact and we have had nothing from which to determine those questions of fact.

MR ROBERTS-SMITH: The only factual matters which are alive - - -

DAWSON J: I mean, how does one know in relation to native title or this particular native title or native title in general whether biological descent is important or whether something else is important? Now, we have no background with which to determine that.

MR ROBERTS-SMITH: When your Honour says that is a matter of fact, the point of that is that on the basis of what fell from the New South Wales Court of Appeal in Mason v Tritton to which reference has been made and which is in your Honours' book of materials and on the basis of what fell from the High Court in Mabo [No 2], the court below in the majority took the view that biological descent from the particular clan was a necessary requirement of proof. Now, there was evidence of biological descent, some evidence of biological descent by the applicants and the question we would seek to argue is whether or not in relation to one of them, Murphy, for example, about which there seemed to be some doubt about biological descent, it was necessary to prove biological descent as such to sustain a claim, an evidentiary claim, in these circumstances because we would seek to make the argument that biological descent, when one looks at Mabo [No 2] and Justice Brennan's observations in that in particular, was being spoken there in terms of alienability or, rather, inalienability of native title to anyone other than a person of Aboriginal biological descent and there must necessarily be, in our respectful submissions, other criteria for determining whether or not an Aboriginal person is entitled to exercise a particular native title right.

Mr Murphy may well fall in that category in that he was a person who on one view could be said to have been acting with the authority of the other two applicants who were of the clan or group which actually had the native title right to fish in that area and one obvious consideration is whether or not in those circumstances another Aboriginal person with appropriate authority from the owners of the traditional right can exercise the right sufficiently at least to sustain a defence in a criminal prosecution, but which could not ever mount a positive claim by that third person for a general claim of native title over the area or the fishery or whatever it may be.

So our submission, with respect, is that that issue and other related issues are very much raised in the factual matrix which was before the Full Court here and do, therefore, fall for determination or, rather, more accurately, do, indeed, squarely raise the special leave points which we have identified in our written submissions.

The Full Court below followed the judgment in Mason v Tritton, which is, as I say, at pages 13 to 16 of the written materials, in which again the New South Wales Court of Appeal assumed, with respect, that what the High Court had said about the requirements of proof on a general claim of native title applied also in relation to a defence to a prosecution for a fisheries offence. As I understand it - and your Honour Justice Kirby was, of course, on that court and would know - but, as I understand the position, the question of whether or not there is a different requirement of proof of native title in those circumstances was never argued before that court.

That is another reason, in our submission, why we submit this is a case in which special leave should be granted, because Mason v Tritton, and the judgment in the court below, now stand for the proposition - an assumed proposition - that the requirement of proof of native title in a defence of a criminal prosecution is the same as in a general claim for land, as enunciated in Mabo [No 2]. That proposition stands, as I say, by assumption, without having been argued in Mason v Tritton, which the High Court below simply followed - of course, also, I recognise, taking the view that the evidence here was insufficient. But that then gets us back to the point raised by your Honour Justice Toohey to begin with - we say took that view because they applied the wrong yardstick, and that is one of the questions we seek to argue.

There is, of course, authority elsewhere, and I refer specifically to Canada, for the proposition that there is a different onus of proof, and it is a lesser onus of proof. Perhaps "onus" is not the right word - requirements of proof is more accurate - a lesser requirement of proof in cases of defence to criminal prosecutions. Justice Wallwork referred to those cases at page 89 of the application book, and I am referring specifically to Alphonse there, and to Reg v Duncan, the citations to which are given at page 89. In Alphonse, the proposition was:

But such all encompassing considerations -

as are necessary to prove a general claim for native title -

are neither necessary nor appropriate in the present case -

the court said:

where Mr Alphonse simply seeks to defend himself during a prosecution initiated on behalf of the Crown.

And again, in the quotation from Judge Gordon from Reg v Duncan set out below that immediately, his Honour said:

In a case involving an Aboriginal right to hunt or fish, it should suffice for the accused to show that either by blood lines, or native tradition -

which is a point we seek to raise, as I have just mentioned -

he is a recognised member of an Aboriginal group that prior to contact exercised a right to hunt or fish at the location in question and that on the day of the alleged offence he was not in breach of any traditional limitation of that right.

Likewise in Te Weehi [1986] NZHC 149; (1986) 1 NZLR 680, at page 693, which is not quoted there by his Honour, but is in the materials at page 132, Justice Williamson, in finding the appellant there to have been acting in the exercise of a native title fishing right, and so not guilty of an offence under the Fisheries Act, observed, and I quote:

It may be that a thorough and intensive investigation by experts may not support the existence of such a customary right but the undisputed evidence called in this case did support such a right and it is upon that evidence that this case must be decided.

TOOHEY J: But could I put this to you; that in terms of granting special leave, or refusing special leave, I mean, it may be one thing to have a case in which there is a considerable amount of evidence which the Court can then pay regard to and perhaps, in the course of its judgment, the Court can then point out what is the minimum evidentiary requirement in such a case, but when you have such slim evidence as is here, it does make this an unsatisfactory vehicle for considering these important questions, because the case is simply likely to go off on that very question; namely, the lack of an evidentiary foundation.

MR ROBERTS-SMITH: Well, of course, unless your Honours were to, or the Court were to come to the view ultimately, and to be persuaded that the requirements of proof were less in this case and, given that - given what those requirements - those lesser requirements of proof were, gauged against that yardstick, the evidentiary issues raised here were, in fact, sufficient. Those are our submissions, if your Honours please.

DAWSON J: Yes, thank you, Mr Roberts Smith. The Court need not trouble you, Mr Cock.

There is no question that the applicants were required to raise an evidentiary basis for the defence upon which they relied. No point of principle is involved in the application of that notion. But the questions upon which the applicants seek to base their applications for special leave to appeal go much further. No doubt they are questions of importance, but the Court would not be able to provide satisfactory answers to them and they, themselves, raise factual issues upon the basis of the evidence led in these cases. That evidence, as the applicants concede, is scant. These cases are not, therefore, satisfactory vehicles in which to determine the points of importance which the applicants seek to raise. Accordingly, special leave to appeal is refused.

MR COCK: If your Honours please, we would move for an order that the applicants pay the respondent's costs.

DAWSON J: It is a criminal proceeding, is it not?

MR COCK: In Western Australia, your Honours, costs are granted in relation to appeals from proceedings in Magistrate's Courts, all the way through the Supreme Courts and, as I understand it, to the High Court. There is no exception in our laws that would differentiate this from any other case between the parties. The exception arises in relation to indictable proceedings, which this was not. We have achieved an order for costs at all levels below and our position, as your Honours know, is that this was just not an appropriate vehicle for an application to proceed to this honourable Court, and we have taken the position which your Honours have endorsed, with great respect, and we believe it is appropriate we receive an order for costs.

DAWSON J: Yes. Mr Roberts-Smith, what do you say?

MR ROBERTS-SMITH: Your Honours, my instructions are that, indeed, no application for costs has been made below, so there has been no order for costs. In relation to the present application, our submission is that it would be, with respect, inappropriate to order costs against the applicants here. They are obviously persons who were confronted with a minor offence, which raised - as it happened, fortuitously - very significant constitutional and other issues, which then had to be litigated through no fault of their own. They, of course, were successful at first instance before the magistrate, and it was the Crown, or, rather, the prosecution, which appealed to Justice Heenan and, of course, that set the whole appeal train in motion. It was not something which was initiated by them but, of course, they had to respond to it and, as I say, there were - - -

KIRBY J: But is it true that in Western Australia, by statute the old common law principle that the Crown neither seeks nor receives costs in criminal matters is abrogated in relation to - - -

MR ROBERTS-SMITH: In relation to summary proceedings, that is the case.

TOOHEY J: But is it? But that is not the case - - -

MR ROBERTS-SMITH: Costs may be awarded in relation to summary proceedings.

TOOHEY J: There is provision for the award of costs and for the indemnity of accused persons, or defendants in the Magistrate's Courts, is there not?

MR ROBERTS-SMITH: Yes, that is what I am saying.

TOOHEY J: Yes. But the real question is when it reaches this Court.

MR ROBERTS-SMITH: Yes. My learned friend wishes to say something further, if your Honour pleases.

DAWSON J: Yes.

MR COCK: If your Honours please, I have just checked the orders from the various courts below. We received an order for costs at one level, but not at two other levels, and I do not press costs.

DAWSON J: Very well, there will be no order as to costs.

AT 12.45 PM THE MATTER WAS CONCLUDED