Lin v Tasmania
[2012] TASCCA 9
•19 September 2012
[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
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASCCA 9
Number of paragraphs: 248
Serial No 9/2012
File No 875/2011
TU AI LIN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
TENNENT J
PORTER J
19 September 2012
Orders of the Court
The appeal against conviction is allowed.
The orders of conviction and sentence made on 4 October 2011 are quashed.
The pecuniary penalty order made on 4 October 2011 is set aside.
The appellant is to be retried on the indictment.
Serial No 9/2012
File No 875/2011
TU AI LIN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
19 September 2012
The appellant was found guilty of one count of conspiracy. He appealed against conviction, sentence and the making of a pecuniary penalty order. On 24 August 2012, the Court allowed the appeal against the conviction, quashed the conviction, and ordered that the appellant be retried. The Court is now publishing its reasons for so ordering.
Porter and Tennent JJ are publishing their joint reasons for concluding that the conviction should be set aside. I agree generally with their reasons and have nothing to add.
It became unnecessary to deal with the appeal against the sentence and the pecuniary penalty order. However, a matter of principle was raised by the appeal against the pecuniary penalty order, in particular by ground 7(a), (b) and (c), which might be raised again if the appellant is convicted at a retrial. Therefore, it is prudent to deal with that aspect of the appeal. The following are my reasons for concluding that what is raised by ground 7(a), (b) and (c) fails.
Pursuant to the Crime (Confiscation of Profits) Act 1993 ("the Confiscation Act"), s22, the trial judge assessed the value of the benefits derived by the appellant from the commission of the conspiracy, of which he was convicted, as $120,220.25, and under s21(1), ordered that he pay to the State a pecuniary penalty equal to the value so assessed.
Ground 7(a), (b) and (c) of the appeal attacks the assessment of the value of the benefits derived by the appellant from the commission of the conspiracy in the following terms:
"7 That the learned trial Judge erred in law by:-
(a) failing to undertake an assessment of the value of the benefits derived by the appellant from the commission of the conspiracy;
(b) wrongly undertaking or purporting to undertake an assessment of the value of the benefits derived by the appellant from the commission of the 12 particularised offences contrary to s265(a) of the Living Marine Resources Management Act;
(c) wrongly assessing the value of the benefits derived by the appellant as being the wholesale value of the additional crayfish obtained by him, without having regard to the price paid by the appellant for the crayfish."
To understand those grounds it is first necessary to understand how the learned judge came to assess the value of the benefits derived by the appellant from the commission of the conspiracy in the sum of $120,220.25.
The appellant was one of two shareholders in Union Seafood Pty Ltd. That company was the sole shareholder in Southern United Seafood Australia Pty Ltd, to which I will refer as "the business". The appellant had effective control of the business, its management and operations. In the words of the appellant's counsel, which were adopted by the learned judge in his comments on passing sentence, the business revolved around the appellant. The business held a fish processing licence under the Living Marine Resources Management Act 1955. The appellant was the nominated person for the purposes of that licence.
Phillip Allan Stephens was a commercial fisherman who undertook his fishing business in partnership with his wife. They were licensed under the Act to take and sell rock lobster, but were limited by a prescribed quota as to the weight of lobster they could take and sell.
The learned judge found that the duration of the conspiracy was from 15 June 2001 until 2 August 2005, and that the key parties to it were the appellant and Mr Stephens. It was also found that consistent with their conspiracy, on 12 occasions during that period, when rock lobster caught by the Stephens were sold to the business, the amount of lobster so sold was understated in records, dockets and other documents required by the Act, and in particular in the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Dockets and, in almost all cases, corresponding Fish Receipt Dockets. The total of the understatements was found to be 3,520.5 kilograms.
As found by the learned judge when sentencing the appellant, in financial terms the Stephens benefited more from the conspiracy than the business. It enabled them to take and sell more than their prescribed quota of lobster.
An advantage gained by the business from the conspiracy was that it was able to trade in more lobster than was available lawfully to it. A further advantage arose out of the terms of the conspiracy itself. There was evidence that on three of the occasions when the weight of lobster was understated, the Stephens sold the undeclared lobster to the business for a price per kilogram that was lower than the price paid to the Stephens for lobster that was declared in the documents required by the Act. The learned judge observed that on one such occasion, the difference in price was $2 per kilogram, on a second occasion it was $3 per kilogram and on the third it was $6 per kilogram. In the course of his closing address and in submissions, Crown counsel suggested that on average, the business paid the Stephens about $3 per kilogram less for undeclared lobster.
In his submissions to the learned judge, the appellant's counsel argued that the evidence of a discounted price related only to those three occasions, and that the learned judge could not make a finding concerning the other nine occasions. Importantly, for the purposes of this ground, counsel for the appellant submitted that the value of the benefits derived from the commission of the conspiracy was the difference between what the business paid per kilogram for undeclared lobster and what it paid for declared lobster. The learned judge did not make a precise finding concerning that difference, but if the business saved $3 per kilogram on average for the understated lobster found by his Honour to total 3,520.5 kilograms, the savings of the business were $10,561.50. Alternatively, if the state of the evidence was that on only three occasions was the price discounted, the savings were less than that sum.
The learned judge rejected that argument. Instead, he assessed the value of the benefits derived by the appellant as $120,220.25, which his Honour said was the wholesale value of the lobster that came into the possession, or under the control, of the appellant or the business, at the request or direction of the appellant, by reason of the operation of the conspiracy. It was in fact based on the price per kilogram that the business paid to the Stephens for lobster that was declared in the dockets required by the Act.
In support of the first three paragraphs of the ground of appeal, the appellant's counsel submitted that the learned judge erred by failing to deduct from the assessed wholesale value of the understated lobster the amount the business in fact paid for that lobster. It was submitted once again that the savings achieved by purchasing cheaper lobster pursuant to the conspiracy represented the benefit derived from the commission of the conspiracy.
The learned judge declined to deduct what was paid for the lobster because of the provisions of the Confiscation Act, s22(6), that "in calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of a serious offence or serious offences, any expenses or outgoings of the person in connection with the commission of the offence or offences are to be disregarded."
By virtue of s22(2), the value of the benefits derived by the appellant from the commission of the conspiracy was to be assessed having regard to the evidence before the court concerning all or any of a number of specified factors. It is only necessary to state the one in par(a) of the subsection. It is:
"The money, or the value of the property other than money, that came into the possession or under the control of —
(i) the defendant; or
(ii) another person at the request or direction of the defendant —
by reason of the commission of the offence or any of the offences."
What the learned judge did, properly in my view and consistently with subs(2)(a), was to have regard to the value of the lobster that came into the possession or under the control of the appellant, or the business at his request or direction, by reason of the commission of the conspiracy. In accordance with subs(6), the learned judge, also properly in my view, disregarded the expenses or outgoings in acquiring that lobster.
The interpretation section, s4, provides that unless the contrary intention appears, "'benefit' includes service or advantage". That is merely inclusionary, and is of no real assistance for the purposes of the appeal. For the purposes of the Confiscation Act, a benefit may include a gain, profit, reward or advance, but it is not synonymous with "profit". In that regard, the Court should follow what was said by the Court of Criminal Appeal in Director of Pubic Prosecutions v Nieves [1992] 1 VR 257; (1991) 51 A Crim R 350, when considering a similar statutory scheme.
Nieves was a case in which a drug trafficker had been paid a total of $21,000 in return for methylamphetamine. At 262; 355 the court emphasised that the word "benefits" has a meaning different from the word "profits"; and that while profits involve benefits to a person, it does not inevitably follow that a benefit includes a profit to the recipient. The court rejected as inconceivable that a court of law should engage itself in the procedure of calculating and setting off against the amount derived from the commission of a crime the expenditure incurred as a result of the unlawful arrangement.
The conclusion reached by the Victorian Court of Criminal Appeal is reinforced for this State by the inclusion in the Confiscation Act of s22(6). There was no similar provision in the Victorian legislation under consideration. Support is also to be found in Cornwell v Australian Federal Police (1990) 24 FCR 544 at 554; 49 A Crim R 122 at 132; 94 ALR 495 at 505, and Razzi v Australian Federal Police (1990) 26 FCR 508 at 514; 97 ALR 349 at 356; 50 A Crim R 142 at 148. See also Re Tillotson [1995] 1 Qd R 86 at 88 and Director of Public Prosecutions v Raines (1995) 79 A Crim R 448 at 451, in which the contrary view of Macrossan CJ in Re Ashworth [1992] 2 Qd R 459 at 467; (1991) 56 A Crim R 122 at 131 was not followed.
It was pointed out by counsel for the appellant that the appellant was convicted of a conspiracy to commit offences under the Living Marine Resources Management Act and not of those offences themselves. He submitted that the appellant's expenses or outgoings in connection with the commission of the conspiracy itself, which effectively was an unlawful agreement, could not logically include the cost of the undeclared fish.
In Cornwell v Australian Federal Police the offender had also been convicted of a conspiracy, one of conspiring with others to import prohibited imports into Australia, namely narcotic goods consisting of cannabis. At 554; 132; 505 it was said by Wilcox J, with whom Lockhart J agreed and Pincus J essentially did also, that for the purposes of the statutory equivalent of s22(6), the purchase of a narcotic for importation into Australia was clearly an "outgoing" incurred in connection with the agreement to import, referring to John Fairfax & Sons Pty Ltd v Commissioner of Taxation (Cth) (1959) 101 CLR 30 per Dixon J at 35. Wilcox J considered it clear that the policy of the equivalent of subs(6) was that such expenses were to be disregarded. This Court should follow the Full Court of the Federal Court unless persuaded it was plainly wrong. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151 – 152; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 at 412. It was not plainly wrong.
Perhaps it should be added that no point was taken at the hearing of the appeal that it was the business which derived the benefit from the commission of the conspiracy and not the appellant. For that reason, there is no need to deal with the point. However, it seems that ss22(2)(a) and 23 of the Confiscation Act would determine it in the Crown's favour.
File No 875/2011
TU AI LIN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
PORTER J
19 September 2012
Introduction
These appeal proceedings are made up of an appeal against conviction, an appeal from the making of a pecuniary penalty order, and an appeal against sentence. On 24 August 2012 the Court allowed the appeal against conviction, made consequential orders including an order for retrial, and said that it would later publish its reasons. These are our reasons for making the orders.
On 29 September 2011, the appellant, Mr Lin, was found guilty by a jury of one count of conspiracy, contrary to s297(1)(c) of the Criminal Code.[1] The count of conspiracy of which the appellant was found guilty was an alternative to the first count on the indictment, also one of conspiracy. The particulars of that alternative count were that between dates in June 2001 and August 2005 the appellant conspired with Phillip Stephens "and/or with other people including Mrs Judith Stephens" to commit crimes contrary to the Living Marine Resources Management Act 1995 (the LMRM Act), s265(a), in keeping records under that Act, namely Commercial Rock Lobster Quota Dockets and/or Fish Receipt Dockets by understating on those dockets the amount of rock lobster taken by the Stephens'.
[1] 297 Conspiracy
Section 265(a) of the LMRM Act provides as follows:
"265 False or misleading records
A person must not, in keeping any records, accounts or other information under this Act —
(a) make a statement knowing it to be false or misleading; …".
On 4 October 2011 the learned trial judge, Evans J, made a pecuniary penalty order under the Crime (Confiscation of Profits) Act 1993, s21(1), in the sum of $120,220.25. His Honour then sentenced the appellant to one year's imprisonment to commence on 29 September 2011, and ordered that he not be eligible for parole until he has served one half of that sentence.
Background
There seems to be no controversy about some basic facts. The appellant ran a fish processing business in Melbourne. He was one of two shareholders, (the other being Leang Ye Lin of the same address as the appellant) in a company which was the sole shareholder in a company named Southern Unite Seafood Australia Pty Ltd, and later, Southern United Seafood Australia Pty Ltd. For the sake of convenience the company will be called SUS. There has been no suggestion that the appellant did not have effective control of the business. Through that business, the appellant dealt with a number of fishermen. He bought quantities of various fish from them, and then on-sold that fish to restaurants and others.
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 first or primary count on the indictment, as distinct from the alternative of which the appellant was convicted, was a count of conspiracy contrary to s297(1)(d) of the Code.[2] The conspiracy alleged was with Phillip Stephens "and/or with other people including Mrs Judith Stephens" to defraud the Minister administering the LMRM Act by falsely under-declaring and under-recording the amount of rock lobster caught and sold by the partnership to SUS.
[2] 297 Conspiracy
"Further particulars" of the first count on the indictment identified 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. (For present purposes these will be simply referred to as the particulars, using their numbers.) In each case, it was 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 3,520 kilograms. The evidence suggested that while SUS paid the partnership for the undeclared rock lobster, it did so largely at a discounted rate.
The Crown case against the appellant was based almost exclusively, if not totally, on various documents said to be business records of either SUS or the partnership, or of both. Before the trial commenced, the appellant raised an objection to the tender of a number of these documents as business records within the meaning of the Evidence Act 2001, s69(1), and to the admissibility of representations contained in them.
On 17 March 2011, the appellant's solicitors 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 request did not identify any persons or representations. Presumably, the author of the letter had in mind the Evidence Act, s167, 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.
Apparently, the Crown maintained that it was unable to identify the persons who made the representations. Before a jury was empanelled, Evans J heard evidence on the voir dire and submissions on the admissibility of the particular documents. Those submissions included an application pursuant to the Evidence Act, s169(1)(c), that the evidence not be admitted because the Crown had, without reasonable cause, failed or refused to comply with the request. On 19 July 2011 his Honour ruled that most of the documents which were the subject of objection were admissible. One document seemed to have been overlooked, and on 20 September, by an oral ruling after the actual trial had commenced, was held to be admissible. On 4 October 2011, immediately before making the pecuniary penalty order and passing sentence, his Honour published reasons for the rulings of 19 July (and one of 26 September which is not relevant to these proceedings): Tasmania v Lin [2011] TASSC 54.
As to the appeal against conviction, the amended notice of appeal delineates grounds which are said to be "evidentiary" (grounds 1 and 2) and those which are "non-evidentiary" (grounds 3, 4, 4A and 6; ground 5 was abandoned). The evidentiary grounds relate to the ruling on the admissibility of the documents. Ground 6 is a complaint that the verdict was unsafe and unsatisfactory for a number of specified reasons. It is therefore necessary to describe the nature of the documents upon which the Crown case was based, and how the case was essentially put.
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 a 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. When tendered, the documents were given the same exhibit numbers, so that document number 12 became P12, document 51 became P51 and so on. (Exhibits with numbers of 130 and over did not directly relate to the particulars, although in some instances they were different copies of those which did.)
The documents were mainly of the following types and descriptions, and will be set out basically in the order which they appear in the jury books:
· Commercial Rock Lobster Quota Dockets – (LMRM Act documents).
· Fish Transfer Certificate (Receipt at Premises) forms/Fish Receipt Dockets[3] – (LMRM Act documents).
· Rock Lobster Catch Record Logbook/Rock Lobster Catch Record forms[4] – (LMRM Act documents).
· Processor Return Forms – (LMRM Act documents).
· Printed Tax Invoice/Statements addressed to SUS containing handwritten details.
· SUS printed documents showing total lobster weight and breakdown into weight categories (SUS weight documents).
· SUS printed "Recipient Created Tax Invoices".
· Printed spreadsheet stock records, marked "Southern Unite Seafood Confidential".
· SUS loose-leaf folder and diary pages with handwritten entries.
[3] 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.
[4] See footnote 3.
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. We will deal later in these reasons in greater detail with the circumstances in which some particular documents were found. It is convenient at this stage to set out the evidence before the trial judge as to the general situation concerning the SUS premises.
Sergeant Peters and Constable Fogarty of Tasmania Police carried out the searches. Constable Fogarty described them as a relatively large processing premises with a downstairs area of perhaps two or three times the size of the courtroom, in which there were holding tanks and freezers. There was an office area upstairs which was close to the size of the courtroom. He said that on 8 August 2006, there were 10 to 15 people working in the factory area, with probably five girls working in the office area. All of the office staff appeared to be Asian, and "all appeared to have some grasp of English …". Sergeant Peters spoke on the telephone with the appellant as then did one of the staff members. That staff member directed the officers to what were called archive records which were in an area in the ceiling above, but to one side of, the factory floor. The officers found numerous boxes of records; between 30 and 50. This area is accessed by a ladder and seems to be more correctly described as an area above a suspended ceiling, or mezzanine-type area.
Constable Fogarty said the office was one big room with about six desks in it. On one side of the room was a large compactus file container which ran from the floor almost to the ceiling, and nearly all of the business records were kept in the compactus. He said that when police again went to the premises in December 2006, the office had been renovated. There had been a separate internal office created for the appellant inside the larger office room. Otherwise everything else was as it had been.
Returning to the documents, many others were tendered, both on the voir dire and in the trial, but it is not necessary for the purposes of this appeal to detail what they were. In the main, the incriminating documents in respect of the particulars under count 1 were really 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, and which are the subject of specific grounds. We will deal with those in due course. For present purposes, we 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 contain two parts, 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. 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. It shows the date and time of receipt, and the weight of fish received. In a number of instances Part B has been completed by the appellant.
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 in 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 those which do exist, most, but not all, have been signed by the appellant.
As to each particular to which they relate, up to this point these documents are internally consistent in relation to the weight of lobster caught by Mr Stephens and received by the appellant.
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, was a tax invoice/statement to SUS from the partnership showing payment for 835kg of lobster at $48 per kilogram. This is P18. Attached to that tax invoice is P18A which is a bank deposit slip in the name of the partnership showing a deposit of $40,080. The evidence on the voir dire showed that P18 and P18A were in "a green file tax folder" which was handed to police on a 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, as distinct from the declared weight of 2,239kg was 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. In relation to all documents found at the home, the trial judge said that some were in cupboards and shelves in what appeared to be an office in the corner of the lounge room, and some were in archive boxes in a bedroom. P24 appears to be a faxed version of a document. The paper is the the old style thermal fax paper. The printed part shows a total weight of lobster of 2,649.35kg, that total figure being broken down into eight separate weight categories. There appears to have been two sets of handwriting, in the same hand, on the original as faxed. P24 shows a copy of a handwritten notation "to be adjusted" with the suggestion that 2,239kg are to be paid for @ 37 = $82,843. To quote from par[21] of the trial judge's reasons:
"It also includes the same information in relation to the payment of that amount by two cheques as is written on the abovementioned Tax Invoice/Statement. This information appears to be written by the same hand on both documents. On the photocopy document itself, again in what appears to be the same hand, the following has been written: '2649.35 – 2239 kg = 410.35 kg @ 35 = $14,362.25'. A further handwritten addition on the document as photocopied is some Chinese characters followed by '2239 kg'. It is agreed, for the purposes of the voir dire, that these characters mean 'report or declare'.[5]"
[5] Evidence was given at the trial by an interpreter to that effect.
As to particular 3, the document relied upon by the Crown to show the real weight as distinct from the declared weight of 1,571kg was one of the "diary" pages containing a number of entries relating to three consecutive dates: P35. This was actually a page in a loose-leaf cliplock folder found by police at the office of SUS on 4 December 2006. A bound diary was found at the same time. Both were located in a metal two-door cabinet in the centre of the office, together with a number of other records of SUS. The folder contains pages detailing quantities of lobster and other fish received from specified persons on dates between, it would seem, 6 December 2002 and 29 June 2003. There are about 60 pages and 500 entries. Similar entries are recorded in the diary, but in the words of the trial judge "in a more sporadic manner". P35 has an entry for "20/12" relating to "Phil Stephen", showing a total of "1,773.77" for lobster, which quantity was broken down into eight categories of "A", "B", "C", "D", "D1", "E", "M" (sic) and "Dead".
Similar pages, P45 and P55, are relied on by the Crown in relation to particulars 4 and 5. There is also what seems to be an odd page from a Catch Record Logbook. This is P44, which of course relates to particular number 4. There are some relevant notations on it, with which we will deal in due course.
As to each of particulars 3 to 12 inclusive, the principal incriminating document is one of the spreadsheet stock records. These spreadsheets and similar ones were found on 8 August 2006 at SUS premises by police. At par[38] of the reasons, the trial judge described the location of these spreadsheets as follows:
"An employee, Julie Szeto, directed [the police] to archived records of the business in the ceiling above the factory floor. One room also contained a large compactus filing system. There were between 30 and 50 boxes of archived records. The records in the boxes included computer generated printouts of spreadsheets stapled together in monthly batches. One of the batches had the word 'inventory' written on it."
The spreadsheets which became exhibits in the trial (and which by their numbering can be seen to relate to counts 3 – 12), are P46A – C, P56A/C, P66A/C, P76A/C, P86A, P96A/B, P106A/B, P116A and P126A.
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"). Relevantly, the spreadsheets divide the total amount of lobster into six different weight categories, together with a "B/G" category and a "Dead" category. Other SUS documents tendered on the voir dire and in the trial show what might be a classification system with six weight categories ranging from 0 – .6kg to "over 2kg", along with "Weak" and "Dead". 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.
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 neither adduced nor gave evidence on the voir dire or in the trial.
Appeal against conviction – evidentiary grounds
Ground 1
The ground alleges that the trial judge erred in law, fact or both in admitting into evidence the relevant representations contained in exhibits P18, 18A, 24, 35, 44, 45, 46A – C, 55, 56A/C, 66A/C, 76A/C, 86A, 96A/B, 106A/B, 116A and 126A. As amended, the particulars of the alleged errors set out in paragraphs (b) to (e) are that:
· in relation to the exhibits, other than exhibits P18 and P18A, the trial judge failed to expose any or any adequate reasoning for holding that the exhibits, and the relevant representations therein, satisfied the requirements of the Evidence Act, s69, or alternatively that the trial judge found that the exhibits satisfied the factual requirements of s69, which findings were not reasonably open on the evidence – ground 1(b)(i) and (ii);
· in relation to P44, the trial judge wrongly concluded that the record in question was the last of numerous similar records contained in the Rock Lobster Catch Record Logbook – ground 1(c);
· in relation to all exhibits, the trial judge wrongly imposed an onus on the appellant to show that the Crown's failure to call as a witness the maker of the relevant previous representations therein, was without reasonable cause – ground 1(d);
· alternatively, if the onus was on the appellant to show that the Crown had no reasonable cause not to call the relevant witnesses, the trial judge erred in finding that the appellant knew or could have established the identity of most, if not all, of the relevant witnesses, and in holding that the appellant was obliged to identify to the Crown the makers of the relevant previous representations – ground 1(e).
Ground 1(b) – a failure to give adequate reasons; alternatively, findings of fact not reasonably open
Central to both aspects is s69(1) and (2) of the Evidence Act which provide as follows:
"69 Exception: business records
(1) This section applies to a document that —
(a) either —
(i)is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii)at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document, so far as it contains the representation, if the representation was made —
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact."
The appellant complains that the trial judge, other than in relation to P18 and P18A, failed to expose any or any adequate reason for holding that the exhibits, and the relevant previous representations therein, satisfied the requirements of s69. Notwithstanding that no complaint about lack of reasons is made in relation to P18/P18A, it is convenient to set out what the trial judge said about where they were found and their context. This encapsulates the s69 findings. At par[10], his Honour said that the documents were from a folder which was made to hang in a filing cabinet, and that an identification tag had been attached to what was the top of the folder when in the hanging position. "Phil Stephens" had been written on one side, with "P A & J G Stephens", on the other. The employee of SUS who provided the folder was probably a person by the name Lai Fong (Julie Szeto).
At par[11], the trial judge went on to say that the hanging folder contained many invoices expressed to be from P A and J G Stephens to SUS covering a period in excess of six years, and that it appeared that the first invoice in the folder is dated 5 July 1999 and the last is dated 21 September 2005. His Honour said "In the main, the invoices bear notations that indicate that they have been checked and paid. The notations appear to have been made by employees of Southern United".
The first exhibit to be considered under this part of ground 1(b) is P24, one of the SUS printed weight documents dated 10 December 2001 with handwriting on it. We have already set out the evidence before the trial judge as to where it was found. Additionally, at par[25] of his reasons, the trial judge said that as the handwritten additions on the photocopy appear to be in the same hand as those on other SUS documents, he assumed that it was a document of SUS, and that the photocopy was provided to a representative of the partnership.
As to the application of s69(2) to P24, the trial judge said:
"26 Turning to s69, I am satisfied:
·that the Weight Document forms part of the records belonging to and kept by the partnership in the course of, or for the purposes of the business of the partnership; and
·that the representations contained in the Weight Document were made by persons who might reasonably be supposed to have personal knowledge of the facts asserted therein, or, on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted facts."
The trial judge went on to deal with submissions which counsel for the appellant had made to him based on passages from the judgment of Franki J in Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647. His Honour noted that the legislation under consideration in that case was not identical to the Evidence Act, s69, but was sufficiently similar for decisions referable to it to be of assistance. His Honour noted that the comments of Franki J relied on were substantially addressed by Drummond J in The Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595, in which Drummond J was dealing with the question of whether a statement made in a letter sent to a business run by an entity, Sailbay, was admissible as evidence of the truth of the matter stated in that letter, by reason of it being a record of the business.
As the trial judge's adoption of the approach taken by Drummond J may be relevant to further issues in this appeal, as well as the particular document presently under consideration, we will set out the entirety of the passage of Drummond J's judgment which the trial judge set out at par[27] of his reasons. The reference by Drummond J to the Evidence Act is a reference to the Evidence Act 1905 (Cth), s7B(1)(a) and (b) which find their equivalents in s69(1)(a) and (b) of the Evidence Act 2001.
The particular passage appears at 42 FCR 597 – 598 and is as follows:
"The letter, not being made by a Sailbay officer, cannot be said to be made in the course of either of Sailbay's businesses. More difficult is the question whether it was made for the purposes of either or both of those businesses. In Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 Franki J, in giving various rulings on the legislation here in issue, said (at 659):
'In general, a statement of fact in a letter from A to B found in the files of B is not admissible as a business record of B merely because it was filed and kept by B. This is because statements in the letter are not made in the course of, or for the purposes of, B's business.'
No–one, I think, would dispute what Franki J had to say there, particularly in view of his emphasis on what 'merely' appears. However, at the same page, his Honour went on to say:
'An invoice may be a communication and, if relevant, admitted on the basis that it is not evidence of the truth of its contents. In the case of an invoice filed in the records of B with the word 'Paid' or other note written on it, the whole does not become a business record of B merely because the word 'Paid' is written on it. The document should be treated as a communication, and any statement of fact in the note, if made by a qualified person, will be admissible as evidence of that fact under Pt IIIA of the Act.'
If his Honour is there to be taken as holding that a document made by a person outside the business and received by the business can never meet the requirements of s 7B(1) unless the truth of what is recorded in the outsider's document is acknowledged by some appropriate person acting on behalf of the recipient's business, with respect, I cannot agree with that.
There is nothing in the wording of s 7B(1)(a) that requires a document to be a document created within the business in question before it can qualify as a document that 'forms part of a record of (that) business'. Moreover, par (a)(iii) and (iv) of the definition of 'qualified person' in s 7A(1) of the Evidence Act show that documents generated by outsiders to a business, including outsiders in relationships more remote than contractual ones, can nevertheless meet all the requirements of s 7B(1), including s 7B(1)(a).
I have said that any need for acknowledgment of the reliability of the document is met by evidence that satisfies s 7B(1)(a). It is the evidence of the location of the document in a record system, formal or informal but a system nevertheless, kept by the business, that meets any such requirement of acknowledgment. There is, in my view, no justification for implying into the section some additional requirement for acceptance by the business of the accuracy of the facts recorded in a document made by an outsider, before it will be admissible.
However, the question of admissibility of a document under s 7B will depend in large part upon the nature of the document in question. There is a difference, it seems to me, between an invoice and a letter received by a business from an outsider. If the evidence shows that in the case of an invoice, for example, it was kept in a file of invoices sent by outsiders who have supplied goods and services to the business and that the invoice purports to record the supply of goods or services of a kind commonly used by the business in the course of its activities, that would, I think, be sufficient to satisfy s 7B(1)(b). Such a document could fairly be said to be made for the purposes of the recipient business although it was also made in the course of and for the purposes of the other business that supplied the goods or services listed in the invoice."
The trial judge said that he agreed with the approach taken by Drummond J, and "consistent with it" concluded that P24, including the handwritten annotations made on it, was prepared for the purposes of both SUS and the partnership. His Honour said that it was in the nature of an invoice, and contained information of quantities received from the partnership and of payments made to the partnership by cheques for one quantity, and a further amount due or paid to the partnership for another quantity. Accordingly, it was admissible as a business record of the partnership.
The appellant concedes that his Honour's recital of the circumstances in which the document was found is a sufficient "recital of facts … to comprise a statement of reasons in relation to the s69(1)(a)(i) requirement". The appellant argues however that the same cannot be said in relation to the remaining two requirements; that is, s69(1)(b) and 69(2). It is argued that it was incumbent upon the trial judge to give reasons in circumstances where there was no evidence as to who prepared the document, for what purpose, or when it was prepared. Those obligations were greater in relation to the handwritten notations on the document.
The next document is P35 which, it will be recalled, is a page from a loose-leaf folder found at the office of SUS. It will also be recalled that a diary was found which contained similar entries. The trial judge noted that a few pages in the dated portion at the commencement of the diary appear to relate to other matters of relevance to SUS such as the phone numbers of apparent employees. As to the application of s69 to the folder and diary documents, his Honour said:
"33 I conclude that the Folder and the Diary form part of the records belonging to and kept by Southern United in the course of, and for the purposes of its business, and that they contain representations recorded in the course of, and for the purposes of the business. I also conclude that they were made by persons who had or might reasonably be suspected to have personal knowledge of the facts asserted therein, or, on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of those facts. I am accordingly of the view that the particular Folder entry in question is admissible as a business record of Southern United."
The appellant submits that this is a simple statement of the necessary conclusions for admission under s69 but without the exposure of any reasoning.
The next category of documents dealt with by the trial judge and the subject of argument in this appeal is made up of exhibits P44, P45 and P46A – C. The allegation in particular 4 is that 571kg were declared as having been caught and received on 21 June 2003, whereas approximately 678kg were in fact caught by Stephens and received by SUS. P44 is a page from a Rock Lobster Catch Record Logbook. It appears from the book that it is produced by the Department of Primary Industries, Water and Environment for the purposes of the LMRM Act. The book contains general information about the book itself, instructions on how to complete the catch record, pages of the logbook and then at the back, a rock lobster fishery map dividing the fishery up into numbered blocks.
The evidence of Constable Fogarty was that the logbook was found in the wheelhouse of the Southern Leader on 5 February 2006. He said the wheelhouse had cupboards in it, and there were quite a number of documents which were just thrown in those cupboards. The cupboards were within a small confined area of the wheelhouse, and the documents generally within one or two cupboards, he believed on the port side at the back of the wheelhouse.
P44 has been apparently used to record something reflected in a series of numbers in a column, but no other required details such as vessel name and month are given. There is a section of the page headed "Fishing Details", and in a column in that section for recording "Depth Fished", there is a list of numbers. 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). The column for "Numbers Taken" is blank. To the right, in a column headed "Details of Numbers of Rock Lobster", three numbers appear one under the other: "571" and then two dollar amounts. The first amount is $25,124. In this respect, the Crown relied on a Tax Invoice/Statement dated 21 June 2001 referable to the purported catch of 571kg, which shows payment by SUS for that quantity of lobster for $25,124.
In argument on the voir dire, Crown counsel accepted the proposition that P44 seems to have "been used as a bit of scrap paper", although that concession seems to have been at least modified. In the written submissions Crown counsel suggests that the page had been clearly used to record significant details of the business, although in oral argument it was acknowledged that the page was not "used for its designated purpose".
The trial judge dealt with P44 as follows:
"39 … The record in question is the last of numerous similar records contained in a logbook of the Southern Leader. I conclude that it forms part of the records belonging to or kept by the partnership in the course of, and for the purposes of its business, and that the relevant page is a representation made or recorded in the course of, and for the purposes of the business. I conclude that it was completed by a person who had, or might reasonably be supposed to have had, personal knowledge of the facts asserted in it, or on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of those facts. It is admissible as a business record of the partnership."
The appellant submits that there is no statement of reasons as to why it is that the relevant representations were made or recorded in the course of or for the purposes of the business. It is argued that it is not possible to find any statement of reasons sufficient to justify the s69(2) requirement.
P45 is a page from the folder not dissimilar to P35 in that it shows a handwritten notation of six categories of what seem to weight figures, referable to "Phil". It does not show a total but it is 673.65 (asserted by the Crown to be about 678). The trial judge said that it was admissible for the same reasons given in relation to P35. It follows that the appellant's arguments as to this document are the same as for P35.
P46A – C are the SUS spreadsheet stock record pages dated 21 June 2003. (P46A shows the same figures as are on P45.) It will be recalled that these were found in monthly batches in the boxes of archived records in the room above the main office. After detailing where these records were found, the trial judge dealt with their admissibility as follows:
"38 … I conclude that each of these [monthly] batches forms part of the records belonging to or kept by Southern United in the course of, or for the purposes of its business, and that they contain representations made or recorded in the course of, and for the purposes of the business. I also conclude that they were recorded by a person who had, or might reasonably be supposed to have had, personal knowledge of the facts asserted therein on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted facts. I am satisfied that these documents are admissible as business records of Southern United."
The appellant submits that it might be accepted that the recital of the finding of the records was sufficient to demonstrate or comprise an adequate statement of reasons for the purpose of s69(1)(a)(i), but there is no explanation to justify the conclusion arrived at in relation to s69(2).
The remaining documents are P55 which is a diary page with an entry similar to those previously discussed in relation to the loose-leaf folder and the diary, and the SUS spreadsheet stock records for particulars 5 – 12. As to P55, and all of the other exhibits for particulars 5 to 12 which were the SUS spreadsheet records, the trial judge said that the nature and content of the documents relied upon for the purposes of each of the particulars, and the circumstances in which they were found, were sufficiently similar to say that for the reasons he had previously given, the documents were admissible. It follows that the appellant's arguments as to these documents are the same.
The Criminal Code, s402(1), is in the following terms:
"402 Determination of appeals
(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."
The alleged failure on the part of the trial judge relates to reasons in relation to an interlocutory ruling on the admissibility of evidence. Counsel for the appellant did not, either in written or oral submissions, attempt to explain the consequences of the alleged failure in terms of the intervention of this Court. Section 401 of the Code does not authorise appeals against interlocutory orders and rulings, and although it is not the judgment or order which is sought to be set aside, in any event a ruling concerning the admissibility of evidence almost exclusively would not be a judgment or order within the meaning of s402(1): see for instance R v Steffan (1993) 30 NSWLR 633; R v Piper [2005] NSWCCA 134 at [10] – [11] and Police vDorizzi [2002] SASC 356.
It follows that for the appeal to succeed on this ground, it must be shown that there has been a miscarriage of justice as a consequence of the alleged failure. Whilst the failure to give reasons undoubtedly may amount to an error of law in some contexts, the failure to give reasons for an interlocutory ruling in a criminal matter will not necessarily lead to an appeal being allowed. In Evans v R (2007) 235 CLR 521, Gummow and Hayne JJ said at 531 – 532 [34]:
"Not every ruling given at trial must be accompanied by reasons. Many issues about the admissibility of evidence are best resolved by simply allowing or disallowing a question to which objection is taken. But there are some evidentiary issues that arise in a trial where it is desirable to give reasons. It is not possible to formulate a single criterion of universal application that distinguishes between issues whose resolution should be accompanied by a statement of reasons and those where reasons need not be given. It suffices to say that cases in which a discretion must be exercised or the resolution of the issue depends upon some intermediate conclusion of fact or law will more likely warrant the giving of reasons than will an issue about the relevance of a question or the form in which it is posed."
In the same case, Heydon J (with whom Crennan J agreed) at 595 [245] referred to the view of the court below that the failure to give reasons in that case was not such a fundamental procedural irregularity as to warrant setting aside the convictions. His Honour said, "This was because, as the Court of Criminal Appeal correctly said, the relevant applications were usually argued at length, so that the evolving views of the trial judge were apparent from what she said in argument."
At 595 – 596 [246], his Honour continued (omitting references):
"In criticising this reasoning, counsel for the accused cited several authorities. But, leaving aside cases concerning trials by judge alone, where statute may compel the giving of reasons, the cases cited all turn on the need for reasons in relation to final orders, like a sentence, an increased sentence, an order denying an entitlement to workers' compensation and an order awarding damages. It is in that type of case where the primary purposes for giving reasons have operation – to enable the parties to see whether their arguments have been understood and what the decision is based on, to further judicial accountability, and to ascertain how cases will be decided in future. Counsel for the accused did cite cases indicating that reasons must be given where 'that is necessary to enable the matter to be properly considered on appeal'. Although many rulings on evidence or other interlocutory rulings in criminal jury trials are unlikely to form the basis of an even faintly arguable appeal, in relation to significant rulings, where a request for reasons is made, at least brief reasons should be given. But where the purpose of the reasons is to enable appellate courts to consider the appeal properly, if that purpose can be achieved in other ways, as where the course of argument makes the reasons plain, the failure to give reasons, though erroneous, will not constitute a miscarriage of justice."
His Honour went on to observe that the thing that matters is that miscarriages of justice be avoided, as distinct from procedural errors which are regrettable but do not cause any miscarriage of justice, saying that:
"The failure to give reasons can be procedurally unfair, but procedural unfairness is not to be looked for in the air: counsel for the accused in this Court failed to demonstrate how either his predecessor or their client was in any way worse off because of the failure to give reasons in this case."
Those observations should be applied and this aspect of ground 1 should not succeed. Without accepting that there has been a failure to provide adequate reasons for the conclusions reached, the appellant has not sought to demonstrate how he has been in any way prejudiced or disadvantaged because of any failure on the part of the trial judge to give any adequate reasons for the rulings. Additionally, in our view sufficient of his Honour's reasoning process appears from a combination of his comments made during submissions, the recitation of the facts and circumstances relating to the documents as business records, and what may be inferred from the documents themselves, a matter to which we will shortly turn. In any event, this Court can resolve for itself the real issue at stake.
Findings of fact under s69 not reasonably open?
This aspect of the appeal challenges the making of three findings as to each of the documents under consideration. Those findings reflect the criteria in s69(1)(b) and s69(2) respectively. They are:
· that in accordance with s69(1)(a) the document formed part of the records belonging to or kept by either SUS or the partnership (or both) for the purposes of a business;
Counsel for the appellant also submitted that the trial judge failed to make any finding as to the weight of the rock lobster received by the appellant pursuant to the conspiracy. Even if he did, he failed to expose any adequate reasoning for the finding in part because he did not appear to draw any conclusion as to which of the 12 particularised offences were in fact established by the evidence.
With respect, this criticism is without merit. His Honour found the conspiracy ran for over four years (that is the period covered by all 12 of the particularised transactions). He also said he was satisfied that the rock lobster which came into the possession of the appellant and his company was "as detailed in the particulars to the indictment and in the evidence". The particulars to the alternative count on the indictment, which was that upon which the appellant was convicted, detail that the first offending identified occurred on 15 July 2001 and occurred again at least on 10 December 2001, 19 December 2002, 21 June 2003, 28 July 2003, 30 March 2004, 22 June 2004, 4 August 2004, 22 January 2005, 23 April 2005, 29 June 2005 and 2 August 2005. It was abundantly clear that his Honour accepted that offending occurred on all those dates, which was consistent with the jury verdict.
The same particulars identify the gross weight of fish caught and that declared, making it a simple exercise to determine the weight of the "off-docket" fish. In our view, his Honour did not need to repeat the particulars in his findings given it was clear upon what basis he was making his determination.
Counsel for the Crown identified in a table attached to his submissions on this appeal the actual calculations which we accept underpinned his Honour's calculation of benefits. While the figure in that table is marginally different from the assessment his Honour made, his Honour's assessment is to the benefit of the appellant and is so small that no error capable of supporting a successful appeal in respect of the penalty has been demonstrated.
Were it to be necessary to decide, ground 7 in all its parts should fail.
Outcome
The appeal against conviction should be allowed and the sentence and the order under the Crime (Confiscation of Profits) Act quashed. There should be an order that the appellant be retried on the indictment.
(1) Any person who conspires with another —
…
(c) to commit any crime;
…
is guilty of a crime.
(1) Any person who conspires with another —
…
(d) to cheat or defraud the public, or any particular person, or class of persons;
is guilty of a crime.
(a)an express or implied representation, whether oral or in writing; and
(b)a representation to be inferred from conduct; and
(c)a representation not intended by its maker to be communicated to or seen by another person; and
(d)a representation that for any reason is not communicated;
22
10
2