Lin v Tasmania - [2015] TASCCA 13

[2015] TASCCA 13

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Lin v Tasmania [2015] TASCCA 13

PARTIES: LIN, Tu Ai
v

STATE OF TASMANIA

FILE NO:  875/2011
DELIVERED ON:  16 June 2015
DELIVERED AT:  Hobart
HEARING DATE/S:  18, 19, 20 August 2014
JUDGMENT OF:  Porter, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Alleged misdirection – Full Azzopardi direction not given – Direction sufficient as it covered the same ground and fulfilled the purpose.
R v Wilson (2005) 26 NSWLR 346, applied.
Aust Dig Criminal Law [3470]
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Misdirection – Circumstantial case – Direction that a reasonable explanation consistent with innocence is not a possibility – Reference to distinction between reasonable explanation and "mere possibility" or "bare possibility" of innocence – Directions erroneous and a miscarriage of justice.

R v Lancefield [1999] VSCA 176; R v Compton and Barratt [2013] SASCFC 134, considered.
Barr v The Queen (2004) 14 NTLR 164, applied.

Aust Dig Criminal Law [3466]

Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal ground dismissed – Circumstantial case based on business records – Where jury misdirected on the standard of proof – In the absence of misdirection finding of guilt open to the jury on the whole of the evidence – Order of acquittal not appropriate – Retrial ordered.
Aust Dig Criminal Law [3476]
Evidence – Documentary evidence – Statutory provisions relating to business records – Criminal cases – Prosecution case based on business records – Makers of representations not apparent from records – Request by accused for the prosecution to call makers of the representations – Prosecution position that makers of some to be called but otherwise the representations were those of the accused – Finding of trial judge that prosecution had shown reasonable cause for failing to call the makers – Finding of trial judge reasonably open.

Evidence Act 2001 (Tas), ss 167, 169.

Aust Dig Evidence [121]

Evidence – Admissibility and relevancy – Opinion evidence – Expert opinion – Other cases – Handwriting expert – Expert asked to assume specimen writings likely to be that of the accused – No direct evidence of authorship of specimen writings – Jury asked to infer that the accused was the author – Inference reasonably open – Expert evidence that the same person was the author of specimen writings and questioned writings relevant.
Aust Dig Evidence [64]

REPRESENTATION:

Counsel:
             Appellant:  P E Barker SC and K Baumeler
             Respondent:  A R Jacobs and H Mannering
Solicitors:
             Appellant:  Butler McIntyre & Butler
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 13
Number of paragraphs: 179

Serial No 13/2015
File No 875/2011

TU AI LIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J
WOOD J
PEARCE J
16 June 2015

Orders of the Court

Appeal allowed.

The appellant be retried on the indictment.

Serial No 13/2015
File No 875/2011

TU AI LIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J

16 June 2015

Introduction

On 29 October 2013, after a trial before Tennent J, the appellant was found guilty by a jury of conspiracy contrary to s 297(1)(d) of the Criminal Code (Tas). That provision then provided that any person who conspired with another "to cheat or defraud the public, or any particular person, or any class of persons" was guilty of a crime. This is an appeal against conviction pursuant to s 401(1)(a) of the Code.
In short, the allegation was that the appellant had conspired with others to understate amounts of rock lobster caught by a particular fisherman and sold to a fish processing company in which the appellant had a prominent role. The understatements were said to have been made in documents given to the relevant Minister or Departmental Secretary.
The appellant had previously been tried and found guilty of the crime of conspiracy under s 297(1)(c) of the Code. That made it a crime to conspire with another to commit any crime. On the indictment then faced, that charge was an alternative to a charge under s 297(1)(d). The appellant successfully appealed to the Court of Criminal Appeal against that conviction and, on 19 September 2012, a retrial was ordered: Lin v Tasmania [2012] TASCCA 9 (Lin No 1). Although retried on a different indictment, the new indictment was in the same terms as that on which the appellant was initially tried, ignoring some immaterial changes in wording. The factual bases of the Crown cases were basically the same, although some additional evidence was called in the retrial.
Some features of the second trial were also similar to those of the previous one. In both, in a preliminary hearing, the appellant unsuccessfully challenged the admissibility of what was essentially the same set of documents.

Background

There is no real controversy about some basic facts. The appellant was involved in a fish processing business in Melbourne. He was one of two shareholders (the other being his wife, Liang Yi Lin*) in a company which, in turn, was the sole shareholder in a company named Southern Unite Seafood Australia Pty Ltd, and later, Southern United Seafood Australia Pty Ltd (SUS). There is no suggestion that the appellant did not have the effective control of the business. Through that business, the appellant dealt with a number of fishermen. SUS bought quantities of various fish from them, and then on-sold that fish to restaurants and others.
* Shown and spelled this way in ASIC records in evidence.
Phillip Allan Stephens was a commercial fisherman who lived at Port Welshpool in Victoria. He ran his fishing business in partnership with his wife, Judith G Stephens. Their fishing vessel was the Southern Leader. The partnership was known as P A & J G Stephens, and in these reasons will be simply called the partnership.
The conspiracy alleged was with Phillip Stephens "and/or with other people including Mrs Judith Stephens" to cheat the Minister administering the Living Marine Resources Management Act 1995 (the LMRM Act) by falsely under-declaring and/or under-recording the amount of rock lobster caught and sold by the partnership to SUS.
"Particulars of Overt Acts" in relation to the first count on the indictment identify 12 occasions between 15 June 2001 and 2 August 2005 on which it was alleged that the appellant, or an agent of SUS at his direction, completed a document which falsely recorded the weight of rock lobster received from the partnership vessel the Southern Leader. In each instance, it is alleged that the records completed disclosed an amount of rock lobster bought and sold which was less than that actually received and paid for. The amount of rock lobster not disclosed totalled some 3520 kilograms. The evidence suggested that while SUS paid the partnership for the undeclared rock lobster, it did so at a discounted rate.
The particulars of the appellant's overt acts are as follows:
"1He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 12799 and Fish Transfer Receipt No 31302 both dated 15.6.2001 and recording 702.2 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 15.7.2001 personally signed a Tasmanian Department of Primary Industries, Water and Environment Processor Return Form recording that 702 kilograms, whereas the actual weight received and subsequently paid for was approximately 835 kilograms.
2He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 19880 dated 10.12.2001 recording 2,239.6 kilograms of rock lobster being received from the vessel 'Southern Leader', and Fish Transfer Receipt No 31344 of 10.12.2001 recording 2,239 kilograms being so received, whereas the actual weight received was approximately 2,649 kilograms which was paid for as 2,239 kilograms invoiced at $37, coming to $82,843 and 410.35 kilograms paid for separately at $35 and coming to $14,362.25.
3He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 19887 dated 19.12.2002 recording 1,571 kilograms of rock lobster being received from the vessel 'Southern Leader', whereas the actual weight received and subsequently paid for was approximately 1,773 kilograms.
4He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 19893 dated 21.6.2003 recording 571 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 21.6.2003 personally signed Fish Receipt Docket No 42305 recording that 571 kilograms, whereas the actual weight received and subsequently paid for was approximately 678 kilograms.
5He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 19894 dated 28.7.2003 recording 982.1 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 28.7.2003 signed Fish Receipt Docket No 42307 recording 982 kilograms being so received, whereas the actual weight received and subsequently paid for, was approximately 1,398 kilograms.
6He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29601 dated 29.3.2004 recording 1,558.2 kilograms of rock lobster being received from the vessel 'Southern Leader' and on 30.3.2004 signed Fish Receipt Docket No 42319 recording 1,558 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 1,668 kilograms.
7He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29603 dated 21.6.2004 recording 731.5 kilograms of rock lobster being received from the vessel 'Southern Leader' and on 22.6.2004 signed Fish Receipt Docket No 42322 recording 731 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 1,220 kilograms.
8He signed the Processor/Fish handler Details section of Commercial Rock Lobster Quota Docket No 29604 dated 3.8.2004 recording 1,361.2 kilograms of rock lobster being received from the vessel 'Southern Leader' and on 4.8.2004 signed Fish Receipt Docket No 42324 recording 1,361 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 2,099 kilograms.
9He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29607 dated 22.1.05 recording 1,305.6 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 22.1.2005 signed Fish Receipt Docket No 42337 recording 1,300 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 1,614 kilograms.
10He signed the Processor/Fish handler Details section of Commercial Rock Lobster Quota Docket No 29611 dated 23.4.2005 recording 1,004.4 kilograms of rock lobster being received from the vessel 'Southern Leader', whereas the actual weight received and subsequently paid for was approximately 1,184 kilograms.
11He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29612 dated 29.6.2005 recording 1,420 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 29.6.2005 he personally signed Fish Receipt Docket No 060801 recording 1,400 kilograms being so received, whereas the actual weight received was approximately 1,573 kilograms.
12He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29613 dated 2.8.2005 recording 1,376 kilograms of rock lobster being received from the vessel 'Southern Leader' and on 2.8.2005 he personally signed Fish Receipt Docket No 060806 recording 1,376 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 1,650 kilograms."

An objection before trial – a request for the Crown to call the makers of representations in documents

The Crown case against the appellant was based on various documents said to be business records of either SUS or the partnership. Before the retrial commenced, the appellant objected to the tender of some of these documents. The basis of part of the objection was that on 17 March 2011, before the first trial, the appellant's solicitors had made a request of the Director of Public Prosecutions for "the Crown to call as witnesses in the trial, each and every person who made each and every previous representation relied on by the Crown, pursuant to Part 6 of Chapter 4 of the Evidence Act". The appellant then no doubt anticipated the proposed tender of many documents as business records containing relevant representations. The request did not identify any persons or representations.
The request did not mention the provision but it appears that it was made under s 167 of the Evidence Act 2001 (the Act) which (relevantly) provides that a party may make a reasonable request to another party for the purpose of determining a question that relates to a previous representation, or the authenticity, identity or admissibility of a document or thing. The objection to admissibility was based on s 169(1)(c) of the Act. That enables a court to make an order that the evidence in relation to which a request was made be not admitted, if the party has, without reasonable cause, failed or refused to comply with the request. The Crown's position was that it was unable to identify the relevant persons so as to be able to call them.
The judge in the first trial, Evans J, had ruled that the documents were admissible. Evans J dealt with a number of objections to admissibility, one of which was the objection under s 169(1)(c). Accordingly, part of Evans J's ruling dealt with that issue, and the ruling on that issue was the subject of part of the first appeal. The Court of Criminal Appeal held that his Honour's ruling on the issue was wrong as it involved an incorrect approach to the onus: see Lin No 1 at [103]–[153].
On 3 October 2012, before the retrial, the Crown wrote to the appellant's solicitors noting an assumption that in respect of the retrial, the s 167 request was repeated. In that letter, the Crown maintained its earlier position that it was unable to identify the persons who made the representations, and requested information as to the names and addresses of employees of SUS during the relevant time, and the dates of their employment. In response the appellant provided, in addition to his own and his wife's details, the names of and some information about four people employed during the relevant period, their positions and commencement dates.
Before a jury was empanelled, Tennent J heard evidence and argument on a preliminary determination of the issue of admissibility based on s 169(1)(c). On 29 August 2013 her Honour ruled that the documents which were the subject of objection should not be excluded. Written reasons (the reasons), were provided but not published beyond the parties.
Grounds 1 and 5 of the amended notice of appeal were not pursued. Grounds 2 and 3 relate to the ruling on the admissibility of the documents, while ground 4 is directed to a later ruling on the relevance of a handwriting expert. Ground 6 complains of errors in the summing up and ground 7 is a complaint that the verdict was unsafe and unsatisfactory for a number of specified reasons. It is necessary to describe the nature of the documents upon which the Crown case was based, and how the case was essentially put.

The basis of the Crown case

At the trial, there was a principal set of documents tendered by the Crown for each of the 12 particulars of the primary count of conspiracy. The documents in each set were numbered so that the first number indicated the particular to which it related. For example, document number 12 related to particular 1, document 22 was a document of the same type, but related to particular 2. Document 51 related to particular 5, and document 121 was of the same type as number 51, but related to particular 12. Capital letters were used after the numbers where there was more than one page to a document, or where there were insufficient numbers for a particular.
The documents were mainly of the following types and descriptions.
· Commercial Rock Lobster Quota Dockets – LMRM Act documents.
·     Rock Lobster Catch Record Logbook/Rock Lobster Catch Record forms[1] – LMRM Act documents.
·     Fish Transfer Certificate (Receipt at Premises) forms/Fish Receipt Dockets[2] – LMRM Act documents.
·     SUS printed documents showing total lobster weight and a breakdown into weight categories (SUS weight documents).
·     Generic printed and numbered Tax Invoice/Statements addressed to SUS (but apparently self-generated) with handwritten entries, attached to which are copies of the relevant quota docket.
·     SUS computer print outs – "Recipient Created Tax Invoices".
·     Printed spreadsheet stock records, marked "Southern Unite Seafood Confidential".
·     Loose-leaf folder and hardback diary pages with handwritten entries.
[1]     The two documents essentially record the same information. There appears to have been a change in the descriptive title at some stage in the relevant period.
[2]     The same comments made in footnote 1 apply.
Some of these documents were part of the records of the Department of Primary Industries, Water and Environment (the Department). Some were found during two searches by police of the SUS premises in Melbourne, the first on 8 August 2006 and the second on 4 December 2006. Some were found during a police search of the Stephens' home on 5 February 2006, and some were found during a search of the Southern Leader on the same day. It is convenient at this stage to set out the evidence in the trial as to the location of documents at the SUS premises.
Sergeant Peters and Constable Fogarty of Tasmania Police, along with a number of Victorian Fisheries officers, went to the premises on 8 August 2006. In evidence, Const Fogarty said that there was a "factory" and an office. The premises were rather large, a "U" shape with a car park in the middle. In the downstairs area there was a small office, and a reception area, whilst on the first floor there was a larger office area with individual work stations and filing cabinets. This seemed to be the main office area. On the right hand side of the "U" was a factory entrance. Inside were fish tanks containing live fish, and there were other offices at the back of that from which there was a set of stairs leading up into another storeroom. In turn, from that storeroom, a small ladder led to a suspended ceiling, or mezzanine type area, above the factory floor.
Const Fogarty said that in the office area there were probably five or six women working. They all appeared to be of Asian descent. There were probably a dozen people working in the factory. Sgt Peters said that he spoke to the appellant on the telephone after a staff member, Ms Julie Szeto, had first spoken to him apparently "in Chinese". The appellant told Sgt Peters that the office staff would assist with police inquiries. They were given some documents by the staff, after which Const Fogarty had a brief conversation with Ms Szeto. He asked if there were any other records which were kept. She indicated that there were archived records in the ceiling space. She took him to that area where a number of boxes of what she described as archived records were shown to him. He took some of those records. He and Sgt Peters returned on 4 August 2006 and seized further documents.

Returning to the documents themselves, the primary incriminating ones in respect of the particulars under count 1 were the SUS printed spreadsheet stock records, and the SUS diary pages. They were incriminating in the sense that they were said to show larger quantities of lobster received by the appellant from Mr Stephens. There were also some entries on some of the documents which were given an incriminatory character by the Crown. For present purposes, I need only provide a summary of what effect the documents are said to have had in terms of proving the guilt of the appellant.
The rock lobster quota dockets come from bound books. There is a pink original, a yellow copy and a white copy for each docket. The pages are carbonised so that what is written on the pink page is reproduced on the two pages below. The pink page goes to the Department, the yellow copy goes with the fish, and the white copy stays in the book. The dockets contain two parts, A and B. Part A is completed by the fishing licence supervisor and contains a statement of the vessel, the date, time and place of unloading and weight of rock lobster unloaded. It also contains a statement of the uncaught quota after deduction of the catch unloaded, except that there is provision so that the yellow copy does not record this information. In the main, Part A on the various dockets tendered was completed by Mr Stephens.
Part B is completed by the processor/fish handler or agent at the point of landing. It shows the date and time of receipt, and the weight of fish received. In seven instances, Part B has been completed by the appellant. The evidence of Mr Stephen Withers, the manager of the fisheries compliance branch of the Department, was that ordinarily, the processor would weigh the fish with the fisherman present, with each then completing the parts for which they had responsibility. All of the quota dockets show Port Welshpool in Victoria as the point of landing for the fish.
The logbook is made up of numbered pages designed to record monthly catches. Along with places for the vessel name and the month, there is a section for "Fishing Details", which includes columns for such things as "Weight of Catch", "Depth Fished" and "Numbers Taken". There is a separate column headed "Details of Numbers of Rock Lobster" which effectively records a running total of fish on board. There is one number for each month, with two pages referable to the same number; a pink original and a white copy. The pink page is carbonised, so that what is written on it appears on the white page underneath. The pink page is sent to the Department, whilst the white page remains in the book.
The catch record is completed by the licence supervisor. In each of the forms tendered, the document is completed for a particular vessel, and records (among other things) the "block" area of the catch and the daily number of lobster caught, with a running tally until the vessel is unloaded. In this case all were completed by Mr Stephens himself. The fish transfer certificates (or fish receipt dockets) show the date, time and supplier identification for lobster received by SUS at its Melbourne premises, and the weight of that lobster. They do not exist for two of the particulars; of the 10 which do exist, eight have been signed by the appellant. The evidence was that the fish were again weighed at the factory premises, the total weight being broken down into various weight categories.
As to each particular to which they relate, up to this point the documents are internally consistent in relation to the weight of lobster caught by Mr Stephens and received by the appellant. The Crown alleges that these amounts are understated.
For the first particular under the primary count, the document said to reveal the actual weight of lobster caught and received, as distinct from the declared weight of 702kg, is a tax invoice/statement to SUS from the partnership showing payment for 835kg of lobster at $48 per kilogram. This is P18. Part of that exhibit is an attached bank deposit slip in the name of the partnership showing a deposit of $40,080. The evidence in the trial showed that the whole of P18 was in a folder which was handed to Sgt Peters on the search of SUS premises on 8 August 2006.
As to particular 2, the document relied upon by the Crown as showing the actual weight of lobster caught and received, allegedly 2649kg as distinct from the declared weight of 2239kg, is a copy of one of the SUS printed weight documents with handwriting on it: P24. This was found by police officers, along with other partnership documents, during a search of the Stephens' home on 5 February 2006. P24 is a received facsimile copy of a printed weight document dated 10 December 2001. The paper is the old style thermal fax paper. The printed part shows a total weight of lobster of 2649.35kg, that total figure being broken down into eight separate weight categories. There are two sets of handwriting in the same hand, with both sets apparently on the original as faxed.
First, there is a handwritten notation, "to be adjusted @ 37 – 2239 – 82,843". The note seems to suggest that 2239kg are to be paid for at $37 per kilogram; a total of $82,843. Under that note, the date of "14/12" appears, along with letters and numbers suggesting that an amount of $82,843 was paid by two cheques, one for $60,000, the other for the balance. Additionally, there are some Chinese[3] characters, followed by "2239 kg". The evidence at trial was that the Chinese writing meant "declare". Under that, "440 kg @35 = $15,400" has been struck through with a darker pen.
[3] Both in the preliminary determination and in the trial, this was how the language was described. The evidence suggests that the language is Mandarin, but I will use the word which was adopted.
Underneath the struck through part, the following has been written with the darker pen, "2649.35 – 2239 kg = 410.35 kg @ 35 = $14,362.25". Allied to P24 is P28 which was also found at the SUS premises. That is a handwritten tax invoice "from" the partnership to SUS for an amount of $82,843, being 2239kg of lobster at "37". There is also a note, "14/12 paid", followed by reference to two cheques, the amounts corresponding with those shown on P24. The handwriting seems to be the same as on P24. Attached to P28 as found, is the yellow copy of a P Stephens quota docket. That shows 2239.6 kg of fish.
As to particular 3, the document relied upon by the Crown to show the real weight of 1773kg, as distinct from the declared weight of 1571kg, was one of the "diary" pages containing a number of entries relating to three consecutive dates. This was page 35 of the jury book (alternatively referred to as P35)[4], located in a loose-leaf cliplock folder, P2. That was found by police at the office of SUS on 4 December 2006: P2. A bound 1995 diary was found at the same time: P3. Both were located in a filing cabinet in the centre of the office.
[4] It is unclear whether the pages are separately marked as exhibits. The particular numbers were not allocated to other exhibits, but the pages were generally referred to in the trial by page number. In this Court they were referred to as separate exhibits.
The folder contains pages with handwritten notes detailing quantities of lobster and other fish received from specified persons on dates between, it would seem, 6 December 2002 and 29 June 2003. Similar handwritten entries are recorded in the diary, but more sporadically. P35 has an entry for "20/12" relating to "Phil Stephen", showing a total of "1,773.77" for lobster, which was broken down into eight categories of "A", "B", "C", "D", "D1", "E", "M" and "Dead". That amount is the alleged higher amount actually received.
In relation to particulars 4 and 5, the Crown relied on entries showing not dissimilar details;[5] P45 from P2 for "21/06", and P55 from P3 which is on a page dated 28 July 1995 but which the Crown would suggest was made in July 2003.[6] The respective amounts as shown total about 674 and 1,398 respectively. They are the amounts alleged to have been actually received, approximately in the case of particular 4 and precisely in the case of particular 5, as against the declared amounts of 571kg and 982kg respectively.
[5] The noted categories are B, C, D, D1 [sic], E and Weak, and B, C, D, D1, E and W respectively.
[6] The printed "Friday" has been crossed out and "Mon" written above. It is clear from the diary itself that many of the entries do not relate to 1995 but to a later period. There was evidence in the trial that there seemed to be a widespread practice at SUS to re-use paper and other stationery.
As to particular 4, there is also what seems to be an odd page from a catch record logbook. This is P47, which of course relates to particular 4. P47 is a white page (or bottom copy) from a catch record logbook. Its significance is the handwriting on it. The evidence was that the logbook was found in the wheelhouse of the Southern Leader on 5 February 2006. I have previously explained the details of the logbook.
The logbook in which P47 is located commences with the number 14847. The logbook pages for the actual catch are numbered 01702 to 01704 inclusive. P47 is the white page of logbook page no 14858. The top pink page seems to have been written on and removed. P47 has on it both original and copy writing, the copy writing presumably resulting from the pink page being written on. The copy writing on P47 records something reflected in a series of numbers in a column, but there are no other required details such as vessel name and month. In the "Depth Fished" column, there is a list of numbers, eg 26.80, 27.70. Under those numbers there is what seems to be a total of 678.6 (although precise addition of the numbers gives a figure of 678.55).
In the "Details of Numbers of Rock Lobster" column, there are three numbers one under the other, "571" and then two dollar amounts. The entry "571" appears to be a carbon imprint, whereas the two dollar figures are original writing in pen. The first dollar amount is "$25124", the second is "$4411.6". In this respect, the Crown relied on a Tax Invoice/Statement dated 21 June 2001 relating to a purported catch of 571kg, which shows payment by SUS for that quantity of lobster for $25,124.
As to each of particulars 4 to 12 inclusive, a principal incriminating document is one of the spreadsheet stock records. These spreadsheets and similar ones in monthly bundles were found on 8 August 2006 at SUS premises by police. The spreadsheets which became exhibits in the trial (and which by their numbering can be seen to relate to counts 4 to 12), are P46A – C, P56A/C, P66A/C, P76A/C, P86A, P96A/B, P106A/B, P116A and P126A. (The capital letters relate to particular pages of the same speadsheet.) The spreadsheets appear to show the receipt of fish of various descriptions on particular dates from, in some cases, Mr Stephens alone, and in some cases, Mr Stephens and other fishermen. (The documents actually variously refer to "Phil Steven", "P Steven", or "P Stevens"). The spreadsheets also record the disposal of fish to named businesses or entities, many of which appear to be restaurants. A running balance of the various fish is maintained. Lobster is broken down into (mostly) weight categories; "U.6. .6-.8, .8-1, 1-1.5, Over 2, B/G[7] and Frozen".
[7] Explained in the evidence to mean B grade.
The Crown says that these documents accurately record the amount of fish received. P46A shows the same figures as recorded by hand in P45. For particulars 4 to 12, the breakdown of weight categories in the spreadsheets can be contrasted with those shown on the computer print-out recipient created tax invoices, P49, 59, 69, etc. On those documents, the weight categories are the same, except that "B/G" is referred to as "Mix Size". The alleged differences between amounts of fish stated on the official returns and those amounts actually received can be seen by a comparison of the weights shown on the spreadsheets and the lesser amounts on the invoices. In some cases only one weight category has been altered; in others, several figures are different.
I should also mention a handwritten entry which relates to particular 8. The Crown's allegation was that 2099kg had been caught and received, as distinct from the declared 1361kg, a difference of 738kg. P81B is the white copy of quota docket 29604 for the Southern Leader, with the date of unloading of 3 August 2004. Part A shows a catch of 1361kg. Part B is signed by the appellant but it refers to the number of containers, not the weight. Just under the section for balance and quota details, there is a handwritten "738 KG" in large numbers and letters, slightly diagonal to the lines of the page. The note of "738 KG" is not original writing but is a carbon imprint. P88 is the yellow copy and was found at the SUS premises by police. It also has the same carbon imprint.
Notwithstanding that the pink copy should have been with the Department, it was not tendered. There is thus no way of knowing whether the notation was written directly onto the pink first page, or whether it was written onto a separate unidentified page resting on top of the triplicate pages in the book. Common sense might suggest that it is more likely to have been the latter. Most of the documents show a weight for the catch of 1361kg. Ultimately, the total figure of 2099kg is shown from an addition of weight categories on an SUS spreadsheet stock record for 3 August 2004.
Obviously there was an issue in the trial as to the weight the jury should attribute to what were said to be representations of fact in the "incriminating" documents. The appellant did not adduce or give evidence on the preliminary determination or in the trial.

The grounds of appeal

As amended and as pursued, there are five grounds of appeal; grounds 2, 3, 4, 6 and 7. Grounds 2 and 3 relate to the issue of the refusal of the s 169 application, and the consequent admission of the evidence in the trial. Ground 4 complains of error in admitting the evidence of a handwriting expert. Ground 6 alleges error in the directions to the jury about the effect of the appellant's silence during the trial, and the standard of proof. Ground 7 complains that the verdict is unsafe and unsatisfactory.

Grounds 2 and 3 – the admissibility of documents

These grounds relate to the preliminary determination and are conveniently dealt with together. They read as follows:
"2The learned trial judge erred in refusing the defence application to exclude the documentary evidence.
3The learned trial judge erred in permitting the Crown to adduce evidence of documents when it was not the intention of the Crown and nor did the Crown in fact [sic] call any evidence linking the creation or maintenance of the documents to the accused."
As I have mentioned, the preliminary determination in the retrial centred on ss 167 and 169 of the Act, the general effect of which I have noted. It is desirable to set out the relevant parts of those sections.
Section 167 provides:
167   Requests may be made about certain matters
A party may make a reasonable request to another party for the purpose of determining a question that relates to —
(a)   a previous representation; or
(b)   …
(c)   …".
For the purposes of s 167, a "request" is defined in s 166 to mean a request that a party makes to another to do one or more of a number of things including, "(f) in relation to evidence of a previous representation – to call as a witness the person who made the previous representation".
Section 169 provides:
"169   Failure or refusal to comply with request
(1)   If a party, without reasonable cause, failed or refused to comply with a request, the court, on application, may make one or more of the following orders:
(a)   an order directing the party to comply with the request;
(b)   …;
(c)   an order that the evidence in relation to which the request was made is not to be admitted in evidence;
(d)   …
…
(4)   Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if —
(a)   the document or thing to be produced is not available to the party; or
(b)   the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced; or
(c)   the person to be called as a witness is not available.
(5)   Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account —
(a)   the importance in the proceeding of the evidence in relation to which the request was made; and
(b)   whether there is likely to be a dispute about the matter to which the evidence relates; and
(c)   whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and
(d)   whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and
(e)   if the request relates to evidence of a previous representation, whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and
(f)    …; and
(g)   whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and
(h)   the nature of the proceeding."
It will be recalled that before the retrial, the previous request under s 167 was re-enlivened. The appellant had made a request that the Crown call as witnesses the people who had made representations. The documents objected to ultimately became exhibits P18, 24, 47, 35, 45, 55, 46A-C, 56 & C, 66A & C, 76A & C, 86, 96A & B, 106A & B, 116A and 126A, the nature of which I have explained.
As I have noted, when asked by the Crown to do so, the appellant's solicitors provided a list of people, including the appellant and his wife, who were employed during the relevant period. The other people were Ms Jian Liang, Ms Yin Qiao and Ms Julie Li Fong Szeto. They were described respectively as production supervisor, book-keeper and receptionist.
In her reasons, after setting out the nature of the documents and the relevant provisions of the Act, the trial judge outlined the situation before her. Her Honour's observations can be summarised as follows.
·     The appellant's notice required the calling of witnesses who made each and every previous representation relied on by the Crown. That notice therefore identified the matter to which any question relates. However, it did not identify the question to be determined in relation to each of those representations, and that was not done during the course of the hearing.
·     It was arguable that the appellant should have been required when the notice was first delivered, to identify precisely the previous representations in respect of which he sought that witnesses be called, and the question to be determined in relation to each.
·     All that had happened was that the appellant's counsel had identified specific documents to which objection was taken without identifying what, in each case, the question to be determined was in relation to that document.
·     However, the Crown had not sought to argue that any request made by the appellant was unreasonable. It had also not sought to raise any of the issues I have identified about the request and what it relates to.
·     The appellant asserted that the Crown had failed without reasonable cause to comply with his request. The Crown had approached this matter, not so much on the basis that it has failed to comply with the request made, but on the basis that it has produced all the witnesses it could, and that, if that is said to be a failure to comply with the request, it has reasonable cause for having only done what it has done to date.

Her Honour then detailed the correspondence between the Crown and the appellant's solicitors, and said that it had to be put in context. She noted that on 16 March 2011, before the first trial before Evans J, Blow J (as he then was) had also been asked to rule on the admissibility of what seems to have been essentially the same set of documents, and on the same basis; that is, there was an earlier request under s 167 in the same terms as the later one of 17 March 2011. Blow J ruled that the Crown had no reasonable cause for failing to comply with the request; that is for its prospective failure to call the makers of the representations in the documents.
In her reasons, the trial judge set out much of Blow J's ruling. Relevantly, it reads as follows:
"So the Crown says that it's as if the accused is complaining that witnesses haven't been produced who made the entries in the records of his own company. However the accused doesn't bear an onus of proof, he doesn't have any obligation to conduct any investigation, he doesn't have any obligation to provide the names of witnesses to the Crown even in relation to the affairs of his own company. It's also worth noting that it's not unknown for staff in a company with lots of employees to involve themselves in activities that their boss doesn't know about. So with that in mind – those principles in mind I return to the critical question, was – can it be said that the failure of the Crown to comply with the request for the calling of the makers of the representations is something that's happened without reasonable cause. In my view the Crown has got into its present position without reasonable cause. The documents that were seized in 2006 that the Crown now needs to rely on aren't self explanatory, the sources of the data in those documents are unknown, the system by which the data that may tend to incriminate the accused isn't known. A thorough investigation would have involved an attempt, once the seized documents were analysed and their significance noted, to identify witnesses who could have shed some light on the creation of the documents and the source of the data in them.
So I am satisfied that because of the – apparently because of the failure to make further inquiries in 2007, the Crown has no reasonable cause for failing to comply with the relevant request. If the Crown had conducted the sort of investigation concerning the documents and the data in them that I've referred to and got nowhere, then I might have reached a different conclusion. But in the present circumstances, in my view, it can't be said that the Crown has a reasonable cause for being in its present situation.
[His Honour then considered the discretion under s 169(5) of the Act, and refused to exercise it in the Crown's favour.]"
Her Honour referred to this ruling "… because it indicates clearly that, at least as at 16 March 2011, the Crown should have been alert to shortcomings in the investigation in this matter, and to the fact it perhaps needed to take steps to remedy those shortcomings". Her Honour said that she also included it because the submissions of counsel for the appellant reflected that ruling. She noted that between that ruling and that of Evans J on 9 July 2011, investigating authorities took a second statement from Julie Szeto and a second statement from Jian Liang, but no other steps seemed to have been taken.
Some of the comments of this Court in Lin (No 1) also became relevant to the debate before the trial judge. In that case, Tennent J and I said:
"143 As earlier discussed, assuming the request to be reasonable, the prosecution would need to show reasonable cause for failing to call the witnesses. If the asserted basis is that the prosecution does not know the identity of the makers, evidence to that effect, and evidence as to what steps had been taken to establish their identity might be expected. That may include evidence of efforts made to have the accused identify the makers, and whether the accused was under caution or had been charged would be relevant to such efforts. If reasonable cause is shown on that basis, a pre-condition to orders under s169 is not met. It might be expected that at least ordinarily, an inference that the accused had actual or available knowledge could not of itself establish reasonable cause.
…
148 As we have said, an assessment of whether the appellant knew or could reasonably establish the makers of the representations may have been a relevant factor. With few exceptions, the documents were SUS documents. But he was under no obligation to conduct inquiries of his own or assist in the investigation. He bore no onus of proof as to the ultimate issue. It will be recalled that in the interview the appellant was asked to find out which employee had prepared the loose-leaf folder pages 'bearing in mind the caution'. The trial judge [Evans J] did not seem to have any evidence as to whether the police followed up on this request, given the appellant's apparent agreement to do what he was asked. [To look at the record to see whose handwriting it was in the loose-leaf folders].
149 The trial judge had some material which suggested at least two SUS employees had been spoken to by the authorities, but there was no direct evidence of any steps taken to establish the identity of the makers of the representations once the documents had been seized, analysed and their significance appreciated. Questions were asked of the appellant but further, independent inquiries might have been expected. The purposes of the loose-leaf folder and diary pages are not obviously self-explanatory. The accuracy of the entries was plainly important. The basic purpose of the spreadsheets might be clear, but the system by which the entries are made is not. Again, the accuracy of the entries was obviously something of concern, and likely to be a major issue."
Her Honour noted that in accordance with what was said in Lin (No 1) the question was whether the Crown had failed without reasonable cause to comply with the notice, and the Crown bore the onus of showing reasonable cause. She noted that none of the matters set out in s 169(4) arose in this case, and stated the Crown's position that, beyond the witnesses it proposed to call, Julie Szeto, Jian Liang, Yin Qiao and Phillip Stephens (an alleged co-conspirator), it was unable to call any witnesses who may have made any of the representations contained in the documents the subject of the objection. This was because it either did not know who they might be and had no means of establishing that, and/or it reasonably believed the person who made the representations to be the appellant.
Of the three persons named by the appellant as employees, Ms Szeto gave evidence in the preliminary hearing. The trial judge was provided with proofs of evidence of the other two. It was agreed before her Honour that "the written and spoken English of Tu Ai Lin's wife Yi Liang Lin [sic] is very limited". Her Honour also heard evidence from a handwriting expert, Mr Stephen Dale, and was provided with the proofs of some of the other witnesses proposed to be called at the trial.
Counsel for the appellant submitted to her Honour that the authorities' attempts to establish the identity of the relevant persons had been inadequate, and that no real attempts had been made to address any shortcomings in the investigation since the ruling of Blow J, and the decision of this Court in Lin (No 1). As her Honour described it, counsel further submitted that the expert handwriting evidence of Mr Dale, called in the preliminary hearing "in an effort to have the Court accept the author of various documents was the accused, was inadequate for that purpose". An "underlying" part of that argument was that it had not been established that the samples of writing said to be specimens of the appellant's writing, were in fact written by him.
In her reasons, the trial judge carried out a detailed analysis of the evidence called before her; in particular the evidence of Ms Szeto and Mr Dale. In light of the arguments, and the fact that much of this debate is relevant to at least ground 4, it is necessary to summarise the analysis.
As to Ms Szeto, the trial judge noted that she had made two statements to police, the first in August 2006 when police went to the SUS premises, whilst the second was in April 2011 between the ruling of Blow J in March 2011, and that of Evans J in July 2011. Ms Szeto told police that she had been employed as a receptionist since early March 2003. As part of her duties she received tally sheets from the factory floor where fish were received. Those tally sheets were completed by others. The weighing of fish and recording the weights on tally sheets was monitored by a supervisor, Jian Liang. There had been another supervisor in about 2005, whose name was Peter Lay. When she received the tally sheets, Ms Szeto calculated the total weight of fish and recorded that total and the amount in each weight category on a spreadsheet in the computer. That spreadsheet contained the seller details and the weight and fish categories.
In her 2006 statement, Ms Szeto said that she would record the total weight on the tally sheet, give this to "Nicole" in accounts, who checked that the weight matched the quota docket that came with the fish, and payment was generated accordingly. Her job did not include correlation of the weight recorded on the quota docket to the weight of fish after categorisation.
For the purposes of the 2006 statement, Ms Szeto was obviously shown quota docket number 19894 which relates to particular 5 of the "Particulars of Overt Acts". The quota docket which was signed by the appellant showed a weight of 982.1kg, while the spreadsheet showed 1398.21kg. Ms Szeto said she could not explain the difference, and her job did not require her to query it. She may bring something like that to Nicole's attention. She said, "No one else should enter this [the total tally weight] into the spreadsheet, so it was probably me who entered the weights onto the spreadsheet, but I can't recall it".
The trial judge referred to "a significant inconsistency" between what Ms Szeto said in her 2006 statement and what was said in evidence. "In her oral evidence [Ms Szeto] inferred basically that, while she may have entered an initial set of numbers in the spreadsheets as provided to her in the tally sheets, anyone else in the business could have subsequently entered other data, or altered what she might have initially put in". Other aspects of her evidence noted by the trial judge included that:
·     after putting the information in the spreadsheet she passed it to the girls upstairs in the office;
·     when she started work in 2003, there were two other females in the office. and between then and 2008, the number had increased by two full-time staff;
·     she did the entry work, unless for some reason she was away;
·     the appellant was involved in everything except when he was away overseas which was about once every three months; and
·     anyone else in the business had access to the spreadsheets after she did the initial entries.
Ms Szeto was shown pages of a bound hardback diary referred to in pars[31] and [32] above. It was the Crown's case that the appellant was the author of the diary. Ms Szeto was asked to interpret a number of entries in the diary which appeared to be written in Chinese characters. She identified the writing was not hers and said that she did not know whose it was. In cross-examination, she said that the Chinese writing she had been referred to was definitely not that of the appellant.
As to Mr Dale's evidence, the trial judge observed that the manner in which his evidence was put before the Court was wholly confusing "and his evidence generally was often rambling without any obvious conclusion". Mr Dale had prepared two charts entitled respectively "specimen writings" and "comparison chart". The Crown said that writing in the specimen writing chart either was, or was probably, that of the appellant, and that by reference to all the characteristics identified by Mr Dale, the appellant had also authored other documents. Her Honour observed that the source of many of the specimens was not identified, and counsel for the Crown appeared to largely abandon reliance on the document when pressed about this during the course of the evidence in the following submissions.
The specimen writings were identified as I have set out below. The first and third sets of documents came from the Department. The second set consisted of ASIC forms, while the express post envelope was produced by Gary Leonard, then a Departmental officer. In March 2006, he had requested the appellant to provide to him transaction records of the appellant's receipt of rock lobster from Mr Stephens. The envelope, which contained a number of documents, arrived about a fortnight later.
·     seven SUS forms including fish processing licence application forms and applications to vary/add supervisors, etc;
·     four SUS company information forms;
·     eight fish receipt dockets signed by the appellant with written SUS details and written details of fish received;
·     an express post envelope.
The questioned entries were on pages of the diary relating to particulars 3, 4 and 5 (later P35, 45 and 55), and on P24. In his affidavit, Mr Dale concluded that the writer of documents 35, 45 and 55 was the same writer as the specimen writings attributed to the appellant, and the writer of entries on P24 (which he described as a less legible questioned entry), was probably the same writer as that of the specimen writings; indeed "highly probable".
The trial judge noted that the position Mr Dale seemed ultimately to take in cross-examination was that "someone was the predominant writer in each of the documents which were identified as the specimen writings attributed to the appellant, and it was the same writer across all of those documents, the same could be said for the questioned entries, and the same author was common to both sets of documents". Mr Dale expressed hesitation about all of document 24 because of the very faded writing on part of it.
As to the hardback diary, Mr Dale said that, as far as the English writing was concerned, there appeared to be a common author, but he did not venture an opinion about whether the author of the English and the Chinese writing was the same. The trial judge noted that, from her own observations of one particular page of the diary, the English and Chinese writings were written by the same pen at the same time. Her Honour said that this was relevant given Ms Szeto's evidence to the effect that the Chinese writing was not that of the appellant.
The trial judge went on to note the "underlying objection to the whole of Mr Dale's evidence". Her Honour noted the submission that the evidence in the preliminary determination actually established that the author of particular specimen documents was a person other than the appellant. Her Honour said that while the argument might undermine any use the Court might make of Mr Dale's evidence, it would not of itself render the evidence inadmissible.
Her Honour continued:
"Counsel for the Crown submitted however that it really was not necessary for the Crown to satisfy the Court that the items described by Mr Dale as specimen writings attributed to the accused could be proved by direct evidence to have been written by him. It was enough that Mr Dale was able to identify that, in effect, the same author wrote most of the documents in the specimen writings category and the questioned items category, because the inference was inescapable given the nature of all the documents and the accused's involvement on a day-to-day basis in the business, that that single author had to be the accused. I will comment about the documents looked at by Mr Dale later in these reasons."
Her Honour went on to examine and summarise the state of the evidence. Her observations and conclusions can be summarised as follows:
·     The relevant documents, apart from document 24, were taken from the appellant's business premises in Victoria in 2006. The documents were produced to police by the appellant's staff with his permission from various places in the premises. They were produced from a compactus in the office area which appeared to hold records, and another area above the factory area and adjacent to an office area, where quantities of documents were stored. There was no suggestion that the documents were anything other than documents prepared and kept in relation to the appellant's business.
·     As to document 24, although it was seized elsewhere, there can be little question about its original provenance as a business record of the appellant's business, as it was an invoice from that business. The added handwriting needed to be considered separately.
·     The size of the appellant's business was relevant. The evidence does not suggest that, in terms of numbers involved in the administrative side of the appellant's business, it was a large business. The appellant was a founder of the business, a hands-on employer, and had involvement in all areas. His name and signature appear on various company information forms and documents. In 2002, 2003 and 2004 his name and signature appear on various other documents upon which the Crown relies, including invoices.
·     There was no evidence about the role of the appellant's wife, other than as a co-founder of the company and a director, and that which related to her limited command of the English language. There was no evidence or even suggestion that any other person, apart from the appellant and his wife, had any level of control in the operation of the business, or a significant interest in it.
·     Authorities had interviewed only three of the appellant's business employees. As to Ms Szeto, her evidence primarily related to the input of data into the computer spreadsheets. There was no evidence specifically identifying her as the person who initially entered the data, even though she agreed she probably did. There was no evidence she printed any of them out. She mentioned the addition of two full-time staff in the years after she started, but she was not asked who the others were, and there was no evidence that police followed-up that line of inquiry.
·     In her proof of evidence prepared in January 2013, Yin Qiao was shown documents which did not appear to be contained in the Crown papers, but in any event, she did not recognise what they were. She does not appear to have been asked anything about any spreadsheets prepared by Ms Szeto. She was not asked if she knew the names of any other employees while she worked there.
·     In her proofs of evidence, Jian Liang said that she worked on the factory floor and was involved in the production of tally sheets when fish were received. She was one of 10 factory assistants who weighed and sorted fish. She did not appear to have been asked about any documents apart from tally sheets.
·     There was no evidence the investigating authorities pursued any line of inquiry in relation to the person named "Nicole", or followed up with the appellant after his police interview about the names of other women in the office. There was no evidence investigating authorities made any attempt at, or at any time near the August 2006 visit, to ascertain the names of any other employees working in the business' administration.
Her Honour then turned to the two categories of documents, the spreadsheets and the handwritten diary pages. As to the spreadsheets, the trial judge said that Ms Szeto's original statement, as opposed to her evidence in Court "given seven years later and in circumstances where she must by then have been aware her employer was the subject of serious criminal allegations", clearly shows that she was the person who most likely entered the original figures in the spreadsheets. Those figures came from tally sheets prepared by staff on the factory floor.

Her Honour noted that the Crown case was that the spreadsheets, when read with the documents which related to the delivery of fish by Mr Stephens, was a pattern which showed that the spreadsheets recorded the fish actually received in the factory, while the documents to which fisheries authorities had access disclosed a lesser amount of fish landed. Her Honour noted that the appellant relied on a statement elicited in cross-examination from Ms Szeto to the effect that others might have had access to the spreadsheets after she initially entered data into them, to suggest that she cannot be said to be the maker of them because there was no proof the information in the document now printed was what she may have actually entered.
Her Honour continued:
"With respect, given the size of the administrative base of this business, and given the process which Ms Szeto initially identified which was that she entered the data and then the material went to other girls, I infer to organize payment, there is no logical reason why anyone would have wanted to alter the figures to that which they now are. It is even less logical to suggest, as must be the case if the accused's argument is accepted, that it happened several times in relation to catches from the same fisherman. The more likely scenario, which I accept for the purposes of this ruling, is that Ms Szeto is the person who correctly entered information given to her from staff on the factory floor in the spread-sheets at least from March 2003 when she commenced her employment. I accept she cannot be the maker of the representations in any spread-sheet prepared prior to that time. She can however interpret them and give evidence of what would have been the usual practice to produce them.
…
As to any attempt by investigating authorities to establish the identity of any person who may have had the role Ms Szeto fulfilled prior to March 2003, I accept there is no evidence of any."
The trial judge's conclusion was in the following terms:
"The foregoing clearly demonstrates inadequacies in investigations in this matter. However, in my view those inadequacies should not result in any finding that, in the circumstances of this case, the Crown has failed to comply with any request made by the accused without reasonable cause. I am mindful of the need to consider relevant factors set out in s169(5). The evidence is clearly important in the proceedings and there will clearly be a dispute on the trial about the matters to which the disputed documents relate. As to whether there is a reasonable doubt about the accuracy of the representations sought to be tendered, as I set out early in these reasons, counsel for the accused did not identify the question to be determined by their request. The argument to date has been simply that the Crown should produce unidentified people who might be the makers of the representations in the documents.
There are reasonable grounds on the evidence presented by the Crown for its stated belief that either the accused is the common author of the handwritten documents as identified by Mr Dale or, if he is not, he knows who is. Since the accused cannot be required to provide information about these matters, it would, in those circumstances, not be reasonably practicable for the Crown to be required to comply with a request to produce the maker of the representations in the handwritten documents in particular. Against that background I am satisfied that the Crown has demonstrated it had reasonable cause for any failure to comply with the accused's request. There is no order excluding the documents identified in these reasons by reference to the Act, s169(1)(c)."
Section 169 operates so that if reasonable cause is shown, that is the end of the matter. If the party fails to show reasonable cause, the power set out in subs (1) may be exercised. The factors set out in that subsection may be taken into account in relation to the exercise of a power. Notwithstanding the trial judge's reference to the need to consider the factors set out in s 169(5), it is clear that, after an extensive review of the material, her Honour was satisfied that the Crown had shown reasonable cause for failing to comply with the notice.
The appellant argues that the finding of reasonable cause is wrong, subsumed within which argument is the issue of the utility of Mr Dale's evidence. The question is not one for rehearing by this Court; the question is whether the finding was reasonably open. If it was not, then the Court can decide what the outcome ought to have been.
It needs to be borne in mind that different considerations applied to different documents or sets of documents. The Crown case was not that the representations in P18 and P47 were made by the appellant. The suggestion is that they were made by Mr Stephens or someone in his business. In the preliminary determination, the trial judge had a proof of evidence of Mr Stephens. It was proposed to call him at the trial, and he was, although he was not then asked anything about these documents by anybody.
The principal debate was about the spreadsheets and the diary entries. It might be said that there were appropriate alternatives to establish the scope of the investigation and the asserted reasonable cause, but the Crown chose to call witnesses the effect of which was to pre-empt issues on the trial. In any event, the Crown called Ms Szeto on the preliminary determination. The Crown's position was that she was the person who entered the relevant data into a computer, from which the printouts were obtained. Although Ms Szeto prevaricated in her evidence, she was put forward by the Crown, for the purposes of showing reasonable cause, as the person who made the representations in the relevant sense. This fact she essentially accepted. I note that she was also called on the trial.
In the preliminary determination, Ms Szeto gave evidence about the diary entries. Some of that evidence was helpful to the Crown, some of which was adverse to its case. Primarily, the evidence about P24 and the three diary entries came from Mr Dale. That evidence was problematic, as the trial judge observed, but it was of some value in the exercise. In terms of its utility or relevance, it should not be viewed in isolation. It has to be put alongside the background information of the company structure, its day-to-day management and operations, the role of the appellant, the role of others as established, and the type of information recorded in the diaries cannot be overlooked.
The diaries have entries in both English and 'Chinese'. Ms Szeto was asked to translate a number of the latter. It is abundantly plain that the diaries record detail of the broad operation of SUS. There are email, log-on and password details for the appellant at the front of the hardback diary. There are entries setting out weight details of what appear to be consignments of fish. Ms Szeto said that the company did business with customers in China and Hong Kong. There are references to transactions with customers apparently in those locations, as well as locally. An international forwarding agent in Dubai is mentioned. There are notes about sales, bad debts, credits for bad quality product, cancellation of orders, freight arrangements, purchases for the business, and business meetings.
Inferences can be drawn from Ms Szeto's evidence and this material that it was the appellant who was, in effect, the alter ego of the company and responsible for its day-to-day management. Evidence that the person who made the entries in the diary is likely to have been the same person who completed ASIC and Departmental documents is of assistance in establishing reasonable cause for the failure to call the person who made the representations in P24 and in the diaries. In order to establish reasonable cause for the failure to call the person who authored the P24 and diary entries on its asserted basis, the Crown needed only to establish that there were reasonable grounds for its assertion that it was the appellant. I think that it succeeded to that extent.
In my view, the overall finding that reasonable cause had been shown was one which the trial judge was entitled to make. It was one which was reasonably open on the material before her Honour. For those reasons these grounds should be dismissed.

Ground 4 – the expert handwriting evidence

Ground 4 reads as follows:
"4The learned trial judge erred in admitting the evidence of the handwriting expert, witness Stephen John Dale, in that there was no evidence to support the proposition that the sample writing was that of the accused and that there was unchallenged evidence that it was not that of the accused."
This ground relates to an objection taken during the trial to the admissibility of Mr Dale's evidence. By the time the evidence was due to be called, Ms Szeto had completed her evidence. Of some significance in the debate is that during cross-examination, she not only said that the Chinese writing in the diaries was not that of Mr Lin, but that the English writing was not his either. Senior counsel for the appellant submitted to the trial judge that there was no direct evidence that the appellant was the author of anything other than some signatures on Departmental documents; in particular there was no direct evidence that he was the author of the diaries or the envelope. He pointed out that the unchallenged evidence was to the contrary.
After some discussion, the Crown's position was crystallised to the submission that there was a "commonality amongst every sort of document" and that it either had to be Mr Lin or someone engaged under his very close control and direction for a period starting at least in 2000, and probably from 1995. The trial judge observed during argument that Crown counsel, in opening to the jury, had said that the case was that the handwriting evidence would establish the relevant writing was done by the same person; "That person, we suggest is the accused …".
The trial judge ruled that the evidence was relevant, but confined the Crown to putting its case on the basis that the writing in the relevant exhibits was that of the appellant. Her Honour said:
"[The objection] that's been taken to [Mr Dale's evidence] is on the basis of relevance. The argument as I understand it – well the relevance of his evidence as I understand it, is that he will give evidence that having reviewed a number of documents across the board which have been loosely identified that there is a common authorship across the whole of the documents which, for the moment, I'll say the Crown's case is it must be that of Mr Lin and I'll probably indicate now because I need to as part of this argument, that the Crown's case to this point on all previous legal arguments and the evidence to this point has been that that author is Mr Lin. There has been no suggestion to any witness - there has been no suggestion in the Crown opening that that author was other than Mr Lin. The Crown has sought to now address that because of that fact being emphasised by suggesting that if defence can show that they've been prejudiced in some way that the Crown will recall a witness.
… So I can indicate now that the Crown's case to the jury is to be restricted to their opening which is that the – its case is that the author of these documents is Mr Lin and going back to the objection that's been raised which is effectively that the evidence of Mr Dale has no – what I might suggest, a base item certain to have been written by Mr Lin which he has used as a point of comparison.
While I accept that criticism of the evidence and it would've been painfully obvious from the voire dire that that was a problem it will be in my view a matter for the jury to determine whether the issue of common authorship if indeed Mr Dale's evidence comes up to that level, could lead them to conclude notwithstanding the evidence of Ms Szeto that that common author – well firstly that there is a common author and secondly, that that common author is the accused. So I'll allow the evidence of Mr Dale but with a caveat on both his evidence and the Crown's case to be put to the jury in that the case must be in accordance with the opening, that is that it was Mr Lin's writing."
There is no merit in this ground of appeal. The reasons for that can be simply stated. Section 55 of the Act provides that evidence is relevant which, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. The fact in issue is the authorship of handwritten entries on P24, and the three diary entries, P35, P45 and P55. Because of the way in which the Crown case had been conducted, the trial judge confined the parameters of the issue to an assertion that the author was the appellant. The question is whether Mr Dale's evidence was relevant in that context.
The law is that even though evidence is of some, albeit slight, probative value, or may be regarded as weak, it is admissible unless some principle of exclusion operates: Festa v The Queen (2001) 208 CLR 593, per Gleeson CJ at [14], McHugh J at [51]; Neal v The Queen [2005] TASSC 70, per Crawford J (as then was) at [10] and Tennent J at [19].
The Crown case as to authorship was based on a suggested inference to be drawn from company documents, the structure and organisation of the business, the role of the appellant in that business, and the nature of the diary entries. It is true that there may have been no direct evidence to support the proposition that any suggested sample writing was that of the appellant, but the jury was entitled to draw inferences as to who it was who may have authored the "sample" writing. Such inferences were reasonably open. Equally, it is true that Ms Szeto gave evidence that the writing in the diaries was not that of the appellant, about which there was no re-examination, and no application under s 38 of the Act to conduct any re-examination by way of cross-examination. But the point is that the jury remained entitled, on the whole of the evidence, to reject Ms Szeto's evidence, or give very little weight to it. The jury may well have taken the view that she was in the appellant's camp.
In his closing address, Crown counsel commented to the jury that they might think there had been "some pre-communication between Ms Szeto and the defence", and said that there was nothing wrong with that being done. He referred to Ms Szeto being asked in cross-examination as to whether the company kept records of Mr Lin's travel. Ms Szeto agreed, and said she had had a look at those records. They were not in evidence. She then agreed that Mr Lin was out of the country for four periods, the specific dates of which were put to her.
In my view, none of the suggested deficiencies in the evidence deprive Mr Dale's evidence of relevance.

Errors in the summing-up?

Ground 6 is in the following terms:
"6The learned trial judge erred in her directions to the jury concerning:
(a) the right to silence;
(b) the standard of proof."

The right to silence

Dealing first with the appellant's right to silence, the summing-up contained the following:
"[I]t's the obligation of the Crown to prove [the] elements [of a crime]. An accused person in a criminal trial does not have to prove their innocence and what's really important is that an accused person does not have to give evidence, they can't be made to and technically, an accused's lawyer can say absolutely nothing if they choose to on a criminal trial and that flows from the inherent right any accused has to remain silent during a trial and you can never reason as a jury he didn't give evidence, we think he's got something to hide, or he didn't give evidence maybe he's probably guilty because he didn't give any explanation. You can never go down that line. An accused person has a legal right to be silent, they have a legal right not to give evidence and all that's happened on this trial is Mr Lin has exercised that right so that's – that's as far as you can go.
… [And later:]
Now the accused has not given evidence on this trial. It is very important that you remember that he didn't have to. He had a legal right to remain silent and he effectively just exercised that right. You cannot infer that he may have had something to hide, you cannot infer that he may be guilty because he didn't give evidence. The Crown must prove the case and one aspect which flows from that is that it's not enough for the Crown to point to a particular document and say that's what it means, you have to consider the document yourself and you have to be satisfied that if you're going to follow the line of reasoning the Crown has asked you to follow, you have to be satisfied in fact that that's what the document says and if you're not satisfied that's going to cause you clearly some difficulty in following the line of reasoning the Crown wants and reaching a conclusion as to guilt. So it just reinforces the view that you need to look at the documentation, you need to satisfy yourselves that a particular document means a particular thing."
The appellant submits that the trial judge was bound to direct the jury in such a manner as to ensure that the silence of the appellant was not used to his detriment, and that the directions did not go far enough. The appellant asserts, relying on comments in Azzopardi v The Queen (2001) 205 CLR 50 at [51], that the trial judge failed to direct the jury that silence did not constitute an admission by the appellant, could not be used to fill any gaps in the Crown case, and could not be used as a "make weight" in assessing whether the Crown had proved its case beyond reasonable doubt.
In Azzopardi, the summing-up contained a reference to the accused's failure to give evidence, noting that he was not obliged to give evidence and that his silence could not be used as an admission of guilt, but that the failure to give evidence might affect the value or weight which the jury gave to the evidence of Crown witnesses.[8] The whole of the relevant observations of Gaudron, Gummow, Kirby and Hayne JJ at [51] is as follows:
"In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence."
[8] The debate was in the context of s 20(2) of the Evidence Act 1995 (NSW), which is in similar terms to a combination of s 20(2) and (3) of the Evidence Act 2001 (Tas). The relevant effect of those subsections is that a judge may comment on the failure of a defendant to give evidence, but the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was guilty of the offence concerned.
It is true that directions which are designed to achieve the thrust of those specific directions will usually be required. However, the statement that "it will almost always be desirable" to give the directions does not constitute a principle or rule that in every case such a direction must be given. So much was made clear by Crawford J with whom Evans J agreed, in Saunders v The Queen [2004] TASSC 95 at [30]. That case was not cited to this Court by either party.

As Tennent J and I noted in Lin No 1 at [215], in Loone v Tasmania [2008] TASSC 7 at [96]-[98], Evans J acknowledged that it is well recognised that a ground which asserts an unsafe or unsatisfactory verdict may come within one or more of the grounds specified in s 402(1). However, his Honour pointed out by reference to a number of authorities, that the use of the phrase "unsafe and unsatisfactory" has no precise meaning, its use to cover the several different elements in a statutory appeal provision is liable to mislead, and that a ground of appeal in those terms is not appropriate. The terminology used should be in accordance with s 402(1).[11]
[11] Evans J referred to Gipp v The Queen (1998) 194 CLR 106 per Gaudron J at [17] and Kirby J at [125], Fleming v The Queen (1998) 197 CLR 250 per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ at [12] and Giam v The Queen (1999) 104 A Crim R 416 per Spigelman CJ at [31]. See also the discussion in Tran v The Queen (2000) 118 A Crim R 218 at [60]-[84].
I interpret the ground as argued as intended to bring the case within the first part of the grounds set out in s 402(1). I take it that the appellant is contending that on the whole of the evidence the verdict was unreasonable, or unsupportable on the evidence, rather than there were material irregularities in the trial which have given rise to a miscarriage of justice, or a "failure to observe the conditions essential to a satisfactory trial": Davies and Cody v The King (1937) 57 CLR 170 at 180.
Put in that way, the issue is whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The question becomes one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which the jury might have convicted, nonetheless it would be dangerous in all of the circumstances to allow the verdict of guilty to stand. If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead a court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act. See M v The Queen (1994) 181 CLR 487 at 492, 494 – 495 and SKA v The Queen (2011) 243 CLR 400 at 405 [11] per French CJ, Gummow and Kiefel JJ.
Before setting out a little more detail of the appellant's argument, I will say something about two of the reasons advanced for why the verdict is unsafe and unsatisfactory. The first point is that I do not understand the relevance of the fact that a challenge to the admissibility of the incriminating documents was made but failed. That issue is the subject of a separate ground and has been determined. It can have no relevance as to whether it was open for the jury to find the appellant guilty on the evidence presented. The second point is the assertion that none of the makers of the representations in the relevant documents was called to give evidence, with the possible exception of Ms Szeto. That assertion assumes the truth of facts which were really part of the factual matrix which the jury had to decide. It was the Crown's assertion that some of the representations were in fact made by the appellant, or at least by someone under his close and immediate direction.
I will set out the way in which the argument was fleshed out, in the order of things as they were advanced. As to Mr Stephens' evidence, the appellant points out that although Mr Stephens was called by the Crown, he was not questioned about any meeting with the appellant or any communications which would bear on the making of the conspiracy. The Crown did not apply under s 38 of the Act for leave to cross-examine him. The second matter relates to parts A and B of the quota dockets. James Banks probably filled out and has signed part B of the quota dockets P11 and P21. Mr Banks is the son-in-law of Mr Stephens' brother John, who was also involved in the lobster fishing industry. The fish transfer certificates for those consignments show that, in receiving the fish, Mr Banks was acting as an agent of SUS.
Of the remainder of the dockets, part B was signed by the appellant on seven occasions. The other three were signed by two people with Asian names but in each instance SUS was the receiver named in the fish transfer certificate. With those 10 part B sections, it was suggested to Mr Stephens that he had filled out the details. When taken through the particular documents, his answers varied from saying that he did not fill out both parts, that he did not know whether it was possible to, saying that he did not know; "I wouldn't have a clue, can't recall". The appellant advances the proposition that where the fish were collected by the appellant or an SUS person not related, "Mr Stephens essentially has acted alone, and filled out part A and B to what he wants it to be and then had the person sign it".
Next, the appellant highlights aspects of Ms Szeto's evidence. Her evidence in the trial was of similar import as that given in the preliminary determination, although she went further in some of her responses. In the trial, she said she started out as a receptionist with SUS in 2003, but after some years looked after the general office. The factory workers weighed lobster as it came in and completed the tally sheets. She entered the tally sheet data into a spreadsheet format on a computer. There was no evidence that she printed them out and made up a monthly bundle. In cross-examination she said there was a password into the computer which basically everyone used; "we don't really have a system there, just everyone has their own spreadsheets to do their jobs". This answer was not explored. She agreed that anyone within the office staff could have changed the spreadsheet figures if they had wanted to, and there was no record of the change. She said that as to the internal records of fish held "at least around 80 per cent is accurate" [sic]. Ms Szeto explained that sometimes the records showed a certain amount of fish held but on staff going to get fish, "there weren't that many there".
Of particular significance, the appellant says, is Ms Szeto's evidence that:
·     she was not aware of the diaries;
·     she recognises Mr Lin's handwriting, and the diary entries were not his writing;
·     the appellant was out of the country for four periods between one to two weeks in mid to late 2003, during which time diary entries were made in what appears to be the same hand;
·     she translated two diary entries as "Winson will need to discuss with Philip Stephens" and "Winson and John Stephens to discuss"; it being unlikely, it is suggested, that the appellant would make entries in those terms; and
·     she confirmed that someone called "Cat" was employed at SUS during the relevant period, this being related to an email address of [email protected] with a user name and password details set out towards the back of the hardback diary.
Not in the specific context of this ground, but the appellant also discussed the evidence of Jian Liang. In her evidence, she said that she had worked for SUS since 2002, she classified and weighed incoming seafood, and had become a supervisor. She said that the fish came in in bins, and described weighing and sizing each lobster into categories. The weights were recorded on pieces of paper which were then put in the office. She accepted that different fishermen's catches could have been mixed up at times so that Mr Stephens' bin might have been somebody else's. Bins might be weighed twice. They tried to avoid mistakes but they could happen, it being a confusing time when the fish were being weighed, and the less experienced people could make more mistakes.
Jian Liang said that there were "many many times" when fishermen would take some other catch back after the fish had been weighed. She also agreed that a difficulty with weights might occur if the bin was not "tared" before weighing, and that on occasions when an order came in for fish to be supplied, there was insufficient fish to fill the order, meaning that the record of fish held was wrong.
More broadly, the appellant argues that:
·     although the Crown called all witnesses nominated as employees of the company at the relevant time, none provided the jury with an explanation about the systems in place;
·     there was no evidence to allow the jury to analyse the way in which negotiations were undertaken with the fishermen, or in particular with Mr Stephens, or "how the company internally worked when dealing with fishermen";
·     there was no evidence as to whether anyone was closely aligned with the appellant, who all of the people in the office were, and what their roles were;
·     there was no evidence as to whether those people had any involvement in the creation or maintenance of the relevant records;
·     the evidence was that it was not unusual for Mr Lin to be away, there was no evidence as to who was in charge when he was not there;
·     as to the authorship of the diaries, one of the company documents suggested as specimen writing had a cross next to the place for the appellant to sign, making it unlikely that he had completed the form; and
·     there was no "definitive evidence" of the source of the suggested specimen writings.
In my opinion this ground must fail. I have reviewed the evidence and the documents, and taken into account the parts of the evidence said to be significant, and suggested deficiencies. I am not persuaded that it was not open to the jury to find the appellant guilty. (To the extent that it might be implicit in the arguments advanced in support of the ground, I am not satisfied that there were material irregularities in the trial, or other features, which have given rise to a miscarriage of justice.)
I think it is necessary to put the appellant's arguments in the proper context of the trial. The jury needed to be satisfied beyond reasonable doubt that the appellant agreed with at least Phillip Stephens that the amount of lobster caught and sold by the partnership to SUS was understated on LMRM Act documents. The Crown relied on 12 instances which it said could prove a discrepancy between the amount caught and delivered to SUS, and what was declared by both Mr Stephens and SUS. It goes without saying that the Crown did not need to prove all of the 12 particulars. They were not individual charges and the jury was not required to make an individual finding as to both; that is, each particular was not being separately tried.
The Crown was required to prove a sufficient number of discrepancies occurring in such circumstances from which it could reasonably be inferred that the SUS records which showed higher amounts, were evidence of what they showed and were reasonably accurate. They then became incriminating when compared with the amounts declared in the official documents. To find the appellant guilty, the jury needed to be satisfied beyond reasonable doubt that there was a sufficient number of under-declarations to support a finding that the only inference reasonably open was that they came about because of a conspiracy.
I have already commented on the assertion that, with the possible exception of Ms Szeto, the makers of the relevant representations were not called. The way the submission was framed tends to ignore the significance that Ms Szeto was called. Although there is some assistance from other documents, the spreadsheets are the principally incriminating documents. Ms Szeto was the person who created them by entering data into a computer. That data came from tally sheets. Jian Liang was a person directly involved, mostly it would seem on a supervisory level, in the making of the tally sheets.
Obviously, in an attempt to undermine the suggested integrity of the documents, both persons were cross-examined about the making of the documents, possible inaccuracies, and how they might be altered. There is no reason to think the jury overlooked these matters; they were carefully highlighted in the closing address on the appellant's behalf. In terms of the reliability of the spreadsheets, the jury was entitled to take into account the fact that they were found amongst monthly batches in an "archive" area above the main office. The jury was entitled to draw reasonable inferences from the format and contents, and from the comparison with the details shown in the recipient created tax invoices about which there is no dispute.
The amounts in kilograms by which it is said the 12 consignments were understated are respectively: 133, 410, 202, 107, 416, 110, 489, 738, 314, 180, 153 and 274. Leaving aside particulars 1 and 2, for the remaining 10 there is a weight breakdown by way of a diary entry, or more predominantly, a spreadsheet which can be attributed to SUS, and which shows the higher amount than that declared by both the partnership and SUS. It may well be that mistakes as outlined by Ms Jian occurred. However, the jury was entitled to have regard to the large amounts of fish alleged to have been under-declared, and as documented mostly in the spreadsheets. It might be thought highly unlikely that mistakes would occur to that extent.
It may also be, as Jian Liang said, that fishermen often took fish back after the weighing process. However, she was talking about the weight process in the factory. As I previously noted, the point of landing for all consignments was Port Welshpool. It was there that parts A and B of the quota dockets showing the alleged under-declarations were completed. Later SUS documents created after the weighing process, apart from those said to be incriminating, show the same amounts. In any event, it might also be thought unlikely that Mr Stephens was removing the amount of fish involved after the weighing process. For him to have been paid for the amount he actually left behind, there would need to be a separate record of what he had removed, and the errors in the spreadsheets suggested by the appellant would become even more egregious. For particulars 1 and 2, there are directly incriminating entries on P18 and P24. The jury was entitled to take those into account when assessing the significance of the documents in relation to the other 10 particulars.
In relation to the writing on P24, and particularly the handwritten diary entries, P35, P45 and P55, much attention was directed, both at the trial and in the appeal, to the question of authorship. It will be recalled that the Crown asserted that the author of the entries on P24 and the three diary pages was the appellant, and that Mr Dale's evidence was that the author of the so-called specimen writing and the questioned writing was the same person. That opinion was not the subject of any real challenge; the issue was whether the writing was that of the appellant. The three diary pages only relate to three particulars out of the 12. It is true, of course, that the Crown did not seek to directly prove the specimen handwriting to be that of the appellant. Mr Dale's evidence was that he was asked to assume the authenticity at three levels. Those levels were: known to have been written by the appellant, almost known to have been written by him, and less likely to have been written by him. The Departmental documents fell into the first category.
In closing, the Crown suggested to the jury that clearly the documents were written by the appellant. Crown counsel put to the jury that there was no suggestion that anyone else who was working there could have done all of the things as detailed in the diaries, but even assuming there had been evidence, for instance, that the appellant's wife spoke proficient English, and that she wrote a lot of things in the business for her husband, that would not alter the fact as to the conspiracy. It was put that the documents were evidence of the conspiracy between the appellant as the business owner, "the hands-on boss who is involved with everything, and Mr Stephens; the documents show that this was intertwined with the running of the business".
For the jury to rely on writings said to be that of the appellant, they needed only to be satisfied beyond reasonable doubt that the particular entries were done at his direction and/or with his authority and knowledge. The jury was alert to the general issue. After deliberating for some time, amongst a number of questions asked of the trial judge were, whether it made a difference if the appellant had personally signed documents or not, and whether as the licence holder, the appellant was personally responsible for the activities of his business. Although the first of those questions was directed to the signing of the official declaration documents, the same issue about the making of incriminating entries would arise.
The trial judge directed the jurors that if they were not satisfied that the appellant was the signatory, they needed to be "satisfied that he authorised their signing or certainly that he was aware that they were being signed on his behalf". As to the second question, the trial judge directed the jury that for the appellant to be criminally responsible for the illegal acts of someone else, he would have had to have known that those illegal activities were actually occurring, agreed to them being done, and agreed to them being done for the purposes of cheating the Minister in the way that has been identified. No complaint is made about those directions.
It was open to the jury to draw inferences from the Departmental and company documents that the writing attributed to the appellant was in fact his. The presence of a cross next to where he was to sign his own name is not, in the overall scheme of things, of great significance. The appellant's wife was also to sign, and did so. As to the diaries generally, the authenticity of similar entries in the diary pages relating to different fishermen was supported by independent evidence of invoices and similar documents. I cannot see that the notation of someone else's email address, user name and password, would in any real or rational way affect a consideration of who it was who wrote the relevant entries. Similarly, for my part, I am not persuaded of the suggested incongruity in the appellant referring to himself in the third person by name. I do not think that such a practice is so unusual as to warrant the weight which the appellant attaches to the issue.
In the context of dealing with grounds 2 and 3, the admissibility of the documents, I pointed out that the jury may have had reason to doubt Ms Szeto's evidence. This Court does not have the advantage of having seen and heard her, an advantage which must be given some weight when assessing a ground of appeal such as this: M v The Queen (above) at 494. The jury could well have rejected Ms Szeto's evidence that she did not recognise the appellant's handwriting in the diaries, and her evidence about his overseas absences.
In any event, whether he actually wrote the entries on P24 and the diary entries, is of no great moment, provided the jury was satisfied beyond reasonable doubt that the entries remained at his direction or with authority and knowledge. As to that issue, as I said earlier, the evidence clearly points to him as the person running the business on a day to day basis. The company was that of the appellant and his wife. It is true that there is evidence of other people working in the office whose roles are not made clear, but it is also the case that Ms Szeto appears as the senior person within the office apart from the appellant. It was she who dealt with the police during the initial search, and who took the police to the records after speaking to the appellant.

I have set out the two aspects of Mr Stephens' evidence which are said to render, or contribute to, the verdict being unsafe and unsatisfactory. The first is that the Crown did not to seek to lead any evidence from Mr Stephens as to the existence of the conspiracy. The appellant seems to rely on the bare fact that, as consequence, there was no direct evidence implicating the appellant. I am not able to see why that has any particular significance other than, as explained in the written submissions, it makes the case wholly circumstantial. In the context of this trial, the failure of the Crown to ask Mr Stephens any questions about the issue is of no consequence. The rule in Jones v Dunkel (1959) 101 CLR 298 extends to where a witness fails to give evidence on an expected topic: Commercial Union v Ferrcom (1991) 22 NSWLR 389. However, after the High Court's decision in Dyers v The Queen (2002) 210 CLR 285, the rule in Jones v Dunkel would seem to have very little, if any, application in criminal trials.
In this case, the appellant did not ask the trial judge to question the prosecution in order to discover its reasons for failing to ask questions on the topic, with a view to having the trial judge give appropriate directions about the use the jury could make of the failure: Dyers per Gaudron and Hayne JJ at 291 [6], and in particular, 295 [17]. The mere fact that the case against the appellant was a circumstantial one is, of course, of no significance in itself. In many cases circumstantial evidence can be stronger than direct evidence: R v Cable (1947) 47 SR(NSW) 183 per Jordan CJ at 184; De Gruchy v The Queen (2002) 211 CLR 85 per Kirby J at 97 [48].
The next aspect is the proposition that Mr Stephens completed the details in part B for 10 of the quota documents, although he did not sign them. Even assuming that a lay comparison of the handwriting leads to satisfaction beyond reasonable doubt that he did fill out those details, there is an explanation in the evidence, and it does not lead to any reasonable inference that he was acting alone in relation to any under-declaration. I have already referred to the evidence of Mr Withers. Ordinarily, the weighing at the landing point was carried out by the processor and observed by the fisherman. The established weight was then entered into both parts of the quota document. There is nothing at all significant in the fact that one person filled out the details in both of the separate parts, but those parts then being signed by the different people.
It is open to find that the effect of each of P18, P24, P47 and P81B is incriminating. The first two are evidence of payments by SUS to the partnership for larger amounts of fish than that declared. P47 shows the total weight of fish alleged to have been taken, and a nominated figure which became the declared amount. P81B is also evidence of a nomination of a figure which is the difference between the declared amount and that alleged to have been taken. The inescapable inference is that the entries on both of those documents were made before the fish were landed.
Properly directed, it was open to the jury to find that the only reasonable inference to be drawn from the circumstances was that of guilt. I have regard to what the evidence shows about the business and the role of the appellant, and to all of the LMRM Act documents as compared with other records, particularly the spreadsheets. The manner of their storage and the detail contained in them are significant factors. The spreadsheet details are, in turn, to be compared with the recipient created tax invoices. There are also the four specific documents to which I have just referred.
It was open to find that the whole of the evidence excluded explanations that Mr Stephens was on a frolic of his own, and/or that the diary entries and spreadsheets were meaningless, or that someone else in SUS was involved in the understatements, at least without the appellant's direct authority and knowledge. Properly directed, it was open for the jury to find that the only reasonable explanation of the circumstances was that there was an unlawful agreement involving the appellant as alleged. There is no justification for this Court to set aside the verdict on this ground, and no warrant to enter a verdict of acquittal.

Outcome

It is for those reasons I have concluded that the appeal should be allowed, and an order made for the retrial of the appellant.
File No 875/2011

TU AI LIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
16 June 2015

I have read the reasons for judgment of Porter J. I agree with those reasons and the conclusion reached that the appeal should be allowed and a retrial ordered.
File No 875/2011

TU AI LIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
16 June 2015

I agree with Porter J.