[2012] TASCCA 9
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Lin v Tasmania [2012] TASCCA 9
PARTIES: LIN, Tu Ai
v
TASMANIA, STATE OF
FILE NO: 875/2011
JUDGMENT
APPEALED FROM: (State of) Tasmania v Lin [2011] TASSC 54
DELIVERED ON: 19 September 2012
DELIVERED AT: Hobart
HEARING DATES: 6, 7, 8 March; 24 August 2012
JUDGMENT OF: Crawford CJ, Tennent and Porter JJ
CATCHWORDS:
Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Criminal cases – Prosecution case based on business records – Makers of representations not apparent from records – Request by accused to call makers of the representations at the trial – Prosecution asserted inability to identify makers – Unsuccessful application by accused to have evidence not admitted – Finding that accused likely to have known of the identity of the makers – Onus on prosecution to show reasonable cause for failing to call the makers as witnesses – Relevance of knowledge of the accused – Evidence Act 2001 (Tas), ss167, 169.
Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324; Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307, considered.
Aust Dig Evidence [121]
Evidence – Documentary evidence – Statutory provisions relating to business records – Particular cases – Criminal proceedings – Business record – Notation on document relied on for a non-hearsay purpose – Request by accused to call maker – Prosecution asserted inability to identify maker – Unsuccessful application by accused to have evidence not admitted – Evidence Act, ss167 and 169 apply to representations tendered for non-hearsay purposes.
Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324; Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307, considered.
Lewis v Nortex Pty Ltd (In liq) [2002] NSWSC 237, applied.
Aust Dig Evidence [122]
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Misdirection or non-direction – Misdirection – Prosecution based on representations in business records – Miscarriage of justice where trial judge wrongly gave significance to a notation not relied on by prosecution as incriminating – Failure to properly re-direct when requested.
Aust Dig Criminal Law [3466]
Criminal Law – Procedure – Confiscation of proceeds of crime and related matters – Pecuniary penalty and like orders – Assessment of benefit derived from the commission of the crime – Crime of conspiracy – Conspiracy to commit crimes under fishing legislation by understating in catch records amount of fish caught – Payment by accused for undeclared amount at lesser rate than for declared amount – Benefit derived was the wholesale value of the undeclared fish received – Price paid for undeclared fish disregarded.
Cornwell v Australian Federal Police (1990) 24 FCR 544 at 554, followed.
Crime (Confiscation of Profits) Act 1993 (Tas), ss21, 22.
Aust Dig Criminal Law [3230]
REPRESENTATION:
Counsel:
Appellant: P W Tree SC and K Baumeler
Respondent: A R Jacobs and H Mannering
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CaseChat Overview and Summary
The central legal issues before the Court were whether the provisions of the *Evidence Act* (Tas) relating to business records, specifically sections 167 and 169, applied to representations tendered for non-hearsay purposes. Further, the Court had to determine the onus on the prosecution to demonstrate reasonable cause for failing to call the makers of such representations, and the relevance of the accused's knowledge of the makers' identities to this determination. The appeal also raised questions of whether a miscarriage of justice had occurred due to misdirection by the trial judge, particularly concerning the significance attributed to a notation not relied upon by the prosecution, and a failure to properly re-direct the jury upon request. Finally, the assessment of the benefit derived from the crime, specifically a conspiracy to understate fish catches, was also in contention.
The Court reasoned that sections 167 and 169 of the *Evidence Act* do indeed apply to representations tendered for non-hearsay purposes. It was held that the onus rests on the prosecution to show reasonable cause for not calling the maker of a representation in a business record, and that the accused's knowledge of the maker's identity was a relevant consideration in assessing whether the prosecution had discharged this onus. The Court found that a miscarriage of justice had occurred because the trial judge had wrongly given significance to a notation not relied upon by the prosecution as incriminating, and had failed to properly re-direct the jury when requested. Regarding the pecuniary penalty order, the Court determined that the benefit derived from the crime was the wholesale value of the undeclared fish received, and that the price paid for these fish was irrelevant to this assessment.
Consequently, the Court allowed the appeal against conviction, quashed the orders of conviction and sentence made on 4 October 2011, and set aside the pecuniary penalty order. The appellant was ordered to be retried on the indictment.
Orders
Orders of the court
1. The appeal against conviction is allowed.
2. The orders of conviction and sentence made on 4 October 2011 are quashed.
3. The pecuniary penalty order made on 4 October 2011 is set aside.
4. The appellant is to be retried on the indictment.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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