Lin v Tasmania

The case of *Lin v Tasmania* was heard by Crawford CJ, Tennent and Porter JJ in the Supreme Court of Tasmania. The dispute concerned an appeal against convictions and a pecuniary penalty order, stemming from a prosecution case that relied heavily on documentary business records. The appellant, Mr Lin, had sought to have the evidence admitted through the makers of the representations within those records, but the prosecution asserted an inability to identify these makers.

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.