R v Hoar

[1981] HCA 67

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Aickin and Brennan JJ.

THE QUEEN v. HOAR

(1981) 148 CLR 32

4 December 1981

Criminal Law—Practice

Criminal Law—Conspiracy—Fisheries offence—Power to order forfeiture of things seized under Act on conviction for offence—Power of inspector to seize upon suspicion of commission of offence against Act—Whether things seized liable to forfeiture upon conviction of conspiracy to commit offence against Act—Conspiracy—Appropriateness of charge when substantive offence committed and charged—Fisheries Act 1978 (N.T.), ss. 8A, 13 (1), 38, 48 (1)—Criminal Law and Procedure Act 1978 (N.T.), s. 53 (1). Practice—High Court—Appeal from Federal Court—Whether matter in issue of value of $20,000 or upwards—Whether proceedings involve directly question respecting property of value of $20,000 or upwards—Order for forfeiture of fishing plant—Federal Court of Australia Act 1976 (Cth), s. 33 (4) (b).

Decisions

December 4.
The following written judgments were delivered: -
GIBBS C.J., MASON, AICKIN AND BRENNAN JJ. After a trial by jury, Donald Edgar Hoar and Jack Harry Noble were convicted on a charge of conspiracy between themselves and others to commit an offence against a law of the Northern Territory, contrary to s. 53 (1) of the Criminal Law and Procedure Act 1978 (N.T.). Hoar was also convicted on two additional charges - assaulting a peace officer in the due execution of his duty and wilful obstruction of a peace officer in the due execution of his duty. For the conviction for conspiracy Hoar was sentenced to three calendar months' imprisonment with hard labour but, pursuant to s. 5 of the Criminal law (Conditional Release of Offenders) Act 1971 (N.T.), it was directed that he be released upon his giving security in the sum of $1,000 by recognizance to be of good behaviour for a period of three years. A similar sentence was imposed on Noble, subject to a like direction under s. 5. In addition, the trial judge directed that certain plant, then thought to be the property of Hoar, which had been seized under the Fisheries Act 1965 (N.T.), be forfeited to the Crown. This plant was of considerable value, consisting of a blast freezer, boning room, chiller room, slaughter room, holding freezer, a diesel engine and a Toyota vehicle. (at p34)

2. The conspiracy of which Hoar and Noble were convicted was a conspiracy to fish for barramundi during a prohibited period (contrary to s. 13(1) of the Fisheries Act) and at a prohibited place (contrary to s. 38 of the Fisheries Act). It involved fishing operations on a large scale. The trial judge described the venture in these terms:

"The extent and scale of this operation was uncertain but it is probable that enough fish were illegally taken to yield some tonnes of fillets. Bearing in mind the price of barramundi in the Territory and in the southern markets there was a possibility of a large profit. Of the two of you Hoar was, undoubtedly, the leader."

His Honour took into account evidence of good conduct, although he did not regard it as having great weight "in the case of a large scale deliberately planned operation". He went on to say that the operation could hardly be described as "a brief inexplicable departure from ordinary habits of honesty and probity, and to this extent quite out of character". However, he thought that Hoar and Noble had suffered considerably. Noble had lost his fishing licence, both defendants had incurred heavy legal costs in the trial and Hoar's plant had been seized and forfeited and he had lost the use of it for the dry season which was then ending. One other factor which weighed heavily with his Honour was his view that the maximum penalty to be imposed was imprisonment for six months. His Honour evidently thought that this penalty, which was the maximum penalty for an offence against the Fisheries Act, was the maximum penalty which he could impose in respect of the conviction for conspiracy. (at p35)

3. In the light of all these factors his Honour decided not to impose a penalty which would result in Hoar and Noble serving a term of imprisonment, a sentence which he otherwise would have considered to be appropriate for the offence which they had committed. (at p35)

4. The Crown appealed to the Federal Court against the sentences imposed in respect of the conviction for conspiracy on the ground that they were manifestly inadequate. Hoar appealed against the forfeiture order on the ground that there was no power to make it. The Full Court of the Federal Court held that the Court had no power to order forfeiture of Hoar's plant. During the hearing of the appeal it emerged that the plant, the subject of the order for forfeiture was not owned by Hoar but by a company, Buffalo International Co., in which Hoar had a very substantial interest. However, the Full Court's decision that there was no power to order forfeiture turned not on this circumstance but on its construction of the relevant legislation. The Full Court went on to hold that the sentences imposed were inadequate. In lieu of the penalty imposed by the trial judge, Forster C.J., the Full Court sentenced Hoar to imprisonment for fourteen months with C non-parole period of six months, and sentenced Noble to imprisonment for twelve months with a non-parole period of five months. The order for forfeiture was set aside. (at p36)

5. The majority in the Full Court considered that the Chief Justice had erred at first instance in several respects. First, he had taken into account the impact on Hoar of the forfeiture of the plant, whereas there was no power to forfeit. Secondly, he had overlooked the circumstance that the conspiracy related to more than one instance of fishing and that the maximum penalty for each of these instances under the Fisheries Act was six months. He was therefore in error in thinking that the maximum penalty that could be imposed in respect of the conviction for conspiracy was six months. Thirdly, he was in error in taking into account the legal costs which had been incurred by Hoar and Noble in defending the proceedings. (at p36)

6. The Crown now seeks to appeal as of right from the order of the Federal Court setting aside the order of forfeiture and, in the alternative, seeks special leave to appeal from that order. Hoar seeks special leave to appeal from the sentence of imprisonment on the ground that it is excessive. There is no application for special leave by Noble. (at p36)

7. In our view the Crown has an appeal as of right under s. 33(4)(b) of the Federal Court of Australia Act 1976(Cth). The evidence is that the value of the plant subject to the order of forfeiture exceeds $20,000. Consequently it appears that the matter in issue in the proceedings, the forfeiture of that plant is of the value of $20,000 or upwards and, alternatively, that the proceedings involve directly a question respecting property of that value or upwards. (at p36)

8. The next question raised by the Crown's appeal is whether s. 48 of the Fisheries Act, formerly the Fisheries Ordinance, now replaced by the Fish and Fisheries Act 1979 (N.T.), authorized the forfeiture. Section 48 (1) provided that "Anything seized under" the Act "may, on conviction of a person for an offence in connexion with which that thing was seized, at the discretion of the court . . . be forfeited to Her Majesty." (at p36)

9. The power of seizure conferred by the Act is found in s. 8A. It is in these terms:

"(1) Where an inspector is satisfied that there is reasonable ground for suspecting that an offence against this Ordinance has been, is being or is about to be committed, he may, without warrant, and with such assistance as he thinks necessary -

. . .

(d) seize, take, detain, remove and secure any vehicle, vessel or aircraft or any net, trap or other device for the taking of fish, any plant, motor, appliance, fitting, gear or equipment whether in, on or attached to any premises, vehicle, vessel or aircraft or any fish or anything that he finds on any premises, vehicle, vessel, aircraft or place or on any person searched, if he has reasonable grounds to believe that it is evidence of or otherwise relates to any offence that has been, is being or is about to be committed against this Ordinance;". (at p37)

10. It will be seen at once that the power of seizure is linked to suspicion that an offence against the Act has been, is being or is about to be committed, and on the existence of reasonable grounds for the belief that the property seized "is evidence of or otherwise relates to any offence that has been, is being or is about to be committed" against the Act. (at p37)

11. Consequently, when s.48 (1) in dealing with forfeiture, refers to "conviction . . . for an offence in connexion with which that thing was seized", it speaks of a conviction for the offence against the Act which was the basis for the initial seizure. It is not speaking of some different offence, let alone an offence under another statute. (at p37)

12. If we assume that the seizure of the plant was authorized by s. 8A (1) (d) because the inspector believed on reasonable grounds that it was being used in relation to the commission of offences against s. 13 (1) and s. 38 of the Act - taking barramundi during a prohibited period of the year and in a prohibited area - the order for forfeiture was not authorized because no conviction was recorded for these offences. The conviction was for conspiracy. The offence of conspiracy, not being an offence under the Act, did not and could not provide a basis for the initial seizure. A conspiracy to commit an offence against the Act could only justify seizure when the execution of the conspiracy advances to the point that an offence against the Act is "about to be committed". It is that circumstance, involving a separate and distinct offence (Reg. v. Cuthbertson (1981) AC 470, at p 483 ), not the commission of the offence of conspiracy, which then enables the seizure to be made. (at p37)

13. Accordingly, the Federal Court was right in holding that there was no power to make an order for forfeiture on conviction of conspiracy. The Crown's appeal must therefore be dismissed. (at p37)

14. Hoar's application for special leave raises a different problem. We are told that, notwithstanding the conviction for conspiracy, there are pending against Hoar charges for summary and substantive offences under the Fisheries Act based on the same transactions as those involved in the offence of conspiracy. The Solicitor-General for the Northern Territory informed this Court that the Crown had not decided whether to proceed with these charges. Twelve of the offences are alleged to be constituted by acts which were the overt acts of the conspiracy, and were taken into account by the Federal Court in determining the sentence to be imposed for that offence. Further prosecutions would therefore seek further punishment for the same acts. (at p38)

15. That suggests that the Crown's advisers have overlooked a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act (see Connolly v. Meagher (1906) 3 CLR 682 ). It has long been established that prosecutions for conspiracy and for a substantive offence ought not to result in a duplication of penalty. In 1848 Lord Denman C.J. in Reg. v. Button (1848) 11 QB 929 at pp 947-948 (116 ER 720, at p 727) said: "If, however, a prosecution for a larceny should occur after a conviction for a conspiracy, it would be the duty of the Court to apportion the sentence for the felony with reference to such former conviction." (at p38)

16. In exceptional cases the element of concert may justify a more severe penalty for conspiracy than for the substantive offence which the conspirators commit (see Verrier v. Director of Public Prosecutions (1967) 2 AC 195, at p 223 ), but where a court, imposing a penalty for conspiracy, takes into account the overt acts of the conspiracy, it would be wrong to impose a further penalty in respect of those acts. (at p38)

17. Indeed the Crown has adopted a course of proceeding which is calculated to cause the maximum amount of prejudice to the defendants and the greatest difficulty to the courts in determining what is a proper penalty. If the Crown's belief was that it had effective charges for the substantive offence then it should have proceeded with those charges and sought on conviction an order for forfeiture which the Court would have been authorized to make. If there had been some real basis for doubting that the offence had been committed the Crown may perhaps have been justified in alleging an attempt or a conspiracy. Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed. As Lord Pearson observed in Verrier (1967) 2 AC, at pp 223-224 , the addition of a charge of conspiracy in the same indictment "will tend to prolong and complicate the trial". There is even less justification for charging conspiracy and the substantive offence separately and for maintaining the prosecution in respect of the substantive offence after securing a conviction for conspiracy. (at p38)

18. In the light of the evidence called for the Crown there seems to have been no reason for thinking that the offence had not been committed. The evidence was that barramundi had been taken, cleaned and filletted and that the fillets had been placed in the freezing plant. Consequently, had the Crown followed the ordinary course, it would have been unnecessary to charge conspiracy and the entire problem of penalty, including the question of forfeiture, would have been disposed of in connexion with the substantive offence or offences. (at p39)

19. In the present case, the Crown elected to proceed first on the charge of conspiracy and sought, on appeal as well as at first instance, a sentence appropriate to the gravity of the overt acts of illegal fishing. Such a sentence was imposed on appeal. It would be wrong for a court now to impose further punishment for the acts of illegal fishing in respect of which Hoar has already received a sentence. (at p39)

20. In this situation we should assume that the Crown will, in accordance with the dictates of propriety, not proceed with the substantive charges and that no order for forfeiture will be made in respect of offences so charged. We shall consider the matter on this footing. (at p39)

21. Had forfeiture been authorized by the Act, the Chief Justice would have been entitled to take its impact on Hoar into account in assessing the penalty to be imposed on him, despite the provision under s. 48 (2) that forfeiture "shall be in addition to and not a part of a penalty". But it follows from what we have already said that the Chief Justice was in error in taking the unauthorized forfeiture into account and its impact on Hoar. Further, he was mistaken in thinking that the maximum penalty that could be imposed in respect of the conspiracy was six months. In general, the maximum penalty for the offence of conspiracy under s. 53 is three years. Although the principle is that the penalty for conspiracy to commit an offence should not as a rule exceed the penalty fixed for that offence - see Verrier - the Court must take into account the number of offences which are the object of the conspiracy. If the conspiracy is to commit but one offence, and Verrier was such a case, then the penalty to be imposed for conspiracy should not in general exceed the maximum penalty for the commission of the substantive offence. If, however, the conspiracy is to commit a number of offences then the Court for the purpose of the principle will have regard to the maximum penalty that can be imposed in respect of those offences. Here, according to the particulars the object was to commit offences against s. 13 (1) and s. 38 (1) of the Fisheries Act. According to the evidence, the object of the conspiracy was to commit a number of offences - the Crown says as many as twelve. Consequently, the statutory maximum of three years was the relevant yardstick. (at p40)

22. We agree with the comments made by the Federal Court on the issue of costs. In this case it was not a mitigating circumstance. (at p40)

23. In the result we think that the trial judge's discretion miscarried and we consider that it has not been shown that there was any error made by the Full Court in its approach on the matter of penalty. (at p40)

24. We would therefore refuse Hoar's application for special leave to appeal. (at p40)

MURPHY J. I agree that in the circumstances there was no power to order the forfeiture of the plant. In England recently a similar conclusion was reached (see Reg. v. Cuthbertson (1981) AC 470 ). On the assumption that there is an appeal as of right against the decision of the Federal Court, the appeal should be dismissed. (at p40)

2. I agree with the criticism of the way in which the prosecution has been conducted. The problem arises out of the amorphous nature of conspiracy. The essence of conspiracy is sometimes regarded as the agreement, sometimes as the partnership in crime which results from the agreement. The vagueness extends to what evidence may be used to establish this slippery concept; it extends also to what should be taken into account on sentencing. The problem is acute where, as here, the Crown charges not only a conspiracy to commit offences but also the commission of those offences. We have a long tradition of resistance to double jeopardy and double punishment. Dangers of these arise when commission of offences and of conspiracy to commit those offences (or offences including those offences) is charged. (at p40)

3. The application is for leave to appeal against sentence only. The applicant was in the business of committing offences against the Fisheries Act 1965 (N.T.). The illegal fishing was extensive and highly organized, and the conviction calls for a substantial sentence. The difficulty in fixing a penalty is that it would be artificial to ignore the fact that the conspiracy was carried out by persistent offences against the Act. That is why the existence of pending charges for such offences is an embarrassing complication. The problem of double sentencing can be met in practice if the sentences for conspiracy and for substantive offences are pronounced at the same time. The methods adopted by the Crown have made this impossible. The refusal of the Crown to state whether it would proceed with the charges for the substantive offences is hard to understand. If the charges are persisted with and result in convictions, any court dealing with them will be aware that the carrying out of the conspiracy has been taken into account in the substantial sentence, which would not have been warranted if the conspiracy had not been implemented. In these circumstances, I agree that the application should be refused. (at p41)

4. Problems such as arose here are inherent in the use of conspiracy charges. Many warnings have been issued by courts against the over-use of conspiracy charges (for example see Verrier v. Director of Public Prosecutions (1967) 2 AC 195, at p 223-224 ). The allurements of conspiracy charges are very great. The imprecision of the charges, the vagueness of the evidentiary rules, the tendency for committal hearings to turn into fishing expeditions, often prove attractive to prosecutors. A cogent objection is that advanced by Glanville Williams in Criminal Law: The General Part, 2nd ed. (1961), p. 684:
"The real objection, it is submitted, is to the use of a conspiracy count to give a semblance of unity to a prosecution which, by combining a number of charges and several defendants, results in a complicated and protracted trial. The jury system is unworkable unless the prosecution is confined to a relatively simple issue which can be disposed of in a relatively short time." (at p41)

5. The overzealous use of conspiracy charges proves embarrassing and costly not only to the accused but ultimately to prosecuting authorities and the courts. It brings the administration of criminal justice into disrepute. This is happening in Australia. History shows that the administration of justice will be well served if courts keep a tight rein on the spawning of conspiracy charges. (at p41)

Orders

Appeal by the Crown dismissed.

Application by Donald Edgar Hoar for special leave to appeal refused.

Order that Donald Edgar Hoar surrender himself forthwith to the Officer in Charge of Police at Katherine in the Northern Territory.