Walden v Hensler (1987) 75 ALR 173

Carlton Hill station in the Kimberley Region

Between: Herbert Walden (appellant) and Peter Baxter Hensler (respondent)

Judges: Brennan, Deane, Dawson, Toohey and Gaudron JJ

Judgment:

Walden was an Aboriginal elder of the Gungalida people, who hunted and kept wild turkeys according to Aboriginal customary law. He was charged with keeping prescribed protected fauna under s
51(1)(a) of the Fauna Conservation Act 1974 (Qld).

The appellant raised the defence under 22 of the Criminal Code (Qld). Under the defence, a person is not criminally responsible for a property offence if the offence was an action that was an "honest claim of right". An honest claim of right is where a person genuinely believed they were entitled to do what they did under the supposed operation of law and the person did not have any intention to commit fraud.

The majority of the full court (Brennan, Toohey and Gaudron JJ) found that the appellant genuinely held the belief that he was entitled to keep the turkeys. However, Brennan J found that the s 22 defence was not applicable
to the offence that the appellant was charged with under s 54.

The appeal was allowed in part. The court set aside the judgment of the
Full Court of the Supreme Court of Queensland and quashed the appellant's conviction. The court ordered the appellant to be completely discharged of the penalty applicable to s 51(1)(a) of the Fauna Conservation Act 1974 (Qld) and instead applied s 657 of the Criminal Code (Qld), which required the appellant to pay court costs of $30.50 within
30 days.

Background

Walden was an Aboriginal elder of the Gungalida people who belonged to the country around Burketown and Doomadgee in Queensland.

On a Sunday in February 1984, Walden obtained permission from the manager of Carlton Hill Station to go hunting in the surrounding station lands. Walden shot and killed a plain turkey which he took home to eat. He also took a turkey chick home to be kept as a pet.

Two days later, the appellant was visited by Hensler, an officer of the Queensland National Parks and Wildlife Service appointed under the Fauna Conservation Act 1974 (Qld) (the Act) seized the carcass of the adult turkey and the live turkey chick. Walden did not know that plain turkeys were protected fauna under the Act at the time he took the turkeys or that he did not have the authority to keep or take the turkeys under the Act.

The appellant was charged with keeping prescribed protected fauna under s 51(1)(a) of the Act. The appellant raised the defence under s 22 of the Criminal Code (Qld) in the Magistrates Court of Mount Isa.

Under this defence, a person is not criminally responsible for a property offence if the offence was an action which was an honest claim of right, that is the person genuinely believed they were entitled to as they did without any intention to commit fraud.

On 15 August 1985, the Magistrates Court rejected the appellant's defence under s 22 of the Criminal Code (Qld). The magistrate convicted the appellant and imposed a fine of $100,
royalties of $260 (double the prescribed amount) and costs
of $559.50

The appellant appealed to the Full Court of the Supreme Court of Queensland.

On 2 May 1986, the Supreme Court also rejected the defence. In its judgment, the Full Court of the Supreme Court of Queensland, provided special leave from the Supreme Court to the High Court of Australia.

Details of Judgment

The majority judgment

In three separate judgments, Brennan, Toohey and Gaudron JJ found that Walden genuinely held the belief that he was entitled to keep the plain turkeys.

Justice Brennan held that Walden had an honest claim of right as long as he held a genuine belief that he could take the plain turkeys under the supposed operation of law. He held that the source of the supposed operation of law could be Aboriginal customary law [12]. Walden's belief that he could keep the plain turkeys under Aboriginal customary law qualified [15].

However, Brennan J found that the s 22 defence was not applicable to the offence that the appellant was charged with under s 54. Justice Brennan held that the s 22 defence could only be used against offences which interfered with property rights. He stated the purpose of s 54 was to prevent the physical destruction or control of fauna [20]. The purpose of s 54 was not to prevent a person from interfering with another person's property rights over the plain turkeys [20]. Accordingly, the defence under s 22 was not applicable to s 54.

Justice Toohey agreed with Justice Brennan's interpretation of the defence of honest claim of right [34].

Justice Gaudron narrowly interpreted s 22 compared to Justice Toohey. Gaudron J found that the source of Walden's genuine belief that he could hunt plain turkeys could not be Aboriginal customary law [15]. Gaudron J reasoned that the source of the belief had to be recognised law under the State of Queensland and Commonwealth of Australia. She held that if the source of the belief was not legally recognised, it would create a loophole where people could break the law based on any arbitrary belief system.

Justice Gaudron found that as Walden obtained permission from the manager of Carlton Hill Station to hunt turkeys, Walden had a legal basis to exercise his right to hunt established within Aboriginal customary law. Alternatively, Gaudron J reasoned that Walden could argue that the permission granted by the manager led him to believe he could legally hunt turkeys [15].

The dissenting judgment

In dissent, Deane and Dawson JJ held that the defence of honest claim of right did not apply.

Their Honours reasoned that s 54 generally prohibits the keeping of fauna, which means that any other right, such as the rights under aboriginal law are excluded [11]. They state that being unaware of the prohibition against keeping fauna is simply ignorance of the law which has no excuse [11].

The majority of the court held that the penalty imposed on the appellent was excessive. Although the s 22 defence did not apply, the fact that appellent genuinely believed he was entitled to take the turkeys, is a reason to reduce the penalty. After considering his genuine belief and his good character with no prior convictions, that the appellant should be completely discharged of the penalty. The court applied the penalty under s 657A given the trivial nature of the offence.

Orders

The appeal was allowed in part.

The court ordered the judgment of the Full Court of the Supreme Court of Queensland be set aside and quashed the conviction of the Magistrates Court. The court ordered the appellant to be completely discharged under s 657 of the Criminal Code and pay court costs of $30.50 within 30 days.

Impact

While this case did not determine whether Aboriginal customary law prevailed over statutes of Queensland, it considered whether Aboriginal customary law applied under general law provisions under the Criminal Code of Queensland.

The majority of the court showed a willingness to accommodate Aboriginal customary law within Australian law.