Abalone poachers’ final native title appeal thrown out by Full Court

THE Full Court has thrown out an appeal by four men convicted of abalone poaching.

• A long legal battle:

• May 2015: Five men accused of poaching abalone
• September 2015 Court rules men were not fulfilling tradition
• September 2016: Supreme Court rejects appeal of poachers

THE state’s highest court has thrown out a claim by four Aboriginal men that they were exercising their native title fishing rights when they were caught in possession of 370 greenlip abalone.

The Full Court of the Supreme Court decision ends a six-year legal battle that has cost taxpayers hundreds of thousands of dollars and has established significant case law in this area. It follows a ruling by Justice Kevin Nicholson in the Supreme Court in 2016 that also dismissed their defence, but did cut their sentences. The case started in December 2011 when five men were caught with the abalone at Point Pearce, near Port Victoria on Yorke Peninsula. Of the 370 abalone, 188 were undersized.

Three of the five abalone poachers Phillip Lincoln, Timothy Dudley, Greg Wanganeen, Edgar Wanganeen and Robin Grant Wanganeen at the Adelaide Magistrates Court.

In Adelaide Magistrates Court, the prosecution alleged the five men were involved in a joint criminal enterprise and possessed the abalone for sale.

However, the five men maintained a defence that their possession of the abalone was not unlawful because they were exercising their native title rights to fish for them and planned to provide them as food to their families in the Point Pearce Aboriginal community. In 2015, the five men were convicted and each sentenced to six months in prison. The sentences of Phillip Dudley and Greg Wanganeen were suspended, but Scott O’Loughlin, Edgar Wanganeen and Robin Wanganeen were ordered to be jailed.

Each of the five were also permanently banned from fishing for abalone. They subsequently appealed both their convictions and sentence . Justice Nicholson upheld the convictions, but set aside the sentences because they were excessive and because of the delay. In re-sentencing the men, he said Dudley and Greg Wanganeen should be treated more leniently than the other three and sentenced them to three months’ jail, suspended.

The five men were caught with undersized abalone on the Yorke Peninsula.

He re-sentenced Robin Wanganeen to four months’ jail, Edgar Wanganeen to five months’ jail and Scott O’Loughlin to six months’ jail, but suspended each term. Each of the five men was also fined up to $8000. Two were also banned from taking abalone for five and 10 year periods. After losing that appeal four of the five men — Phillip Dudley, Scott O’Loughlin, Greg Wanganeen and Edgar Wanganeen, appealed their convictions.

In the Full Court judgment Justices Bampton, Lovell and Doyle state the evidence presented in their original trial “simply did not address the matters required to make out a defence’’ under the Native Title Act. “...the evidence at trial.... did not rise any higher than that the Nurungga people have traditionally engaged in the activity of fishing (including for abalone) in the relevant area...” they state. “The existence of native title right to fish requires more than this.’’