R v Turner
[2000] TASSC 177
•14 December 2000
[2000] TASSC 177
CITATION: R v Turner & Ors [2000] TASSC 177
PARTIES: R
v
TURNER, Phillip Bruce
LEE, Mervyn Robin
JANSEN, Cornelius Marinus
COULSTON, Daren Te Ariki Charles
TEDESCO, Antonio
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 320/2000
DELIVERED ON: 14 December 2000
DELIVERED AT: Hobart
HEARING DATES: 7 December 2000
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Averments - Particulars - Conspiracy to defraud Commonwealth or public authority under Commonwealth - Deflection of public officers from duty.
Aust Dig Criminal Law [714]
REPRESENTATION:
Counsel:
Crown: M Rozenes QC and J Read
First Accused: W P Boucaut
Second Accused: B R McTaggart
Third Accused: P A Dunn QC and J D Edwardson
Fourth Accused: B J Powell QC
Fifth Accused: J M Fuller
Solicitors:
Crown: Commonwealth Director of Public Prosecutions
First Accused: Jennings Elliott as agents for: Piper Alderman, Lawyers
Second Accused: Jennings Elliott
Third Accused: Jennings Elliott as agents for: John Lister
Fourth Accused: Jennings Elliott as agents for: Coates PL
Fifth Accused: Jennings Elliott as agents for: Lynch & Meyer
Judgment Number: [2000] TASSC 177
Number of Paragraphs: 45
Serial No 177/2000
File No 320/2000
THE QUEEN v PHILLIP BRUCE TURNER, MERVYN ROBIN LEE,
CORNELIUS MARINUS JANSEN, DAREN TE ARIKI CHARLES COULSTON
and ANTONIO TEDESCO
REASONS FOR JUDGMENT BLOW J
14 December 2000
The five accused have been charged with a single count of conspiracy to defraud the Commonwealth, contrary to the Crimes Act 1914 (Cth), s86A. Counsel for each of them contends that insufficient particulars of the charge have been supplied. Applications have been made on behalf of each accused for the indictment to be quashed pursuant to the Criminal Code, s352, and/or for proceedings thereon to be stayed pending the provision of further particulars.
The particulars set out in the indictment read as follows:
"particulars
Phillip Bruce Turner, Mervyn Robin Lee, Cornelius Marinus Jansen, Daren Te Ariki Charles Coulston and Antonio Tedesco at Hobart in Tasmania, Port Lincoln in South Australia and divers other places on and between 3 February 1992 and 31 December 1993 conspired together to defraud the Commonwealth and the Australian Fisheries Management Authority, an authority under the Commonwealth, by dishonestly agreeing to cause and permit false returns to be submitted to the Department of Primary Industries and Energy and to the Australian Fisheries Management authority [sic] as to the quantity of orange roughy taken in the Australian Fishing Zone in 1992 and 1993."
The five accused were originally charged with this alleged crime and numerous counts of imposition by a complaint under the Justices Act 1959 dated 18 March 1999. The particulars of the conspiracy count in that complaint were worded identically with the particulars now appearing in the indictment.
Further particulars of the conspiracy charge have been provided in a surprising number of documents comprising (a) letters from the office of the Commonwealth Director of Public Prosecutions ("the DPP") dated 20 March 2000, 22 March 2000, 28 March 2000, 6 June 2000, and 13 November 2000; (b) a written outline of the opening address of senior prosecution counsel at the committal proceedings ("the written outline"); (c) a written outline of his closing submissions at the committal proceedings ("the written closing"); and (d) a written outline of the submissions of prosecuting counsel in relation to these applications, dated 4 December 2000. Each of these documents, together with a number of letters from the solicitors for the accused requesting particulars, have been made available to me by consent.
Background
Essentially the Crown alleges that in 1992 and 1993 the five accused were involved in a conspiracy whereby two fishing companies ("Victrawl" and "Trident") caught greater quantities of orange roughy than they had been permitted, or purportedly permitted, to catch, and whereby individuals associated with them submitted forms to the Australian Fisheries Management Authority ("AFMA") falsely stating that smaller quantities had been caught. The dispute as to the adequacy or otherwise of the particulars that have been supplied to date has arisen largely because the Crown alleges a conspiracy to defraud which involves an unusual species of fraud, namely the deflection of public officers (and perhaps also AFMA as a public authority) from carrying out their public duties. The existence of this species of fraud is well established: Peters v R (1998) 192 CLR 493, per McHugh J at 525; Board of Trade v Owen [1957] AC 602; R v Terry [1984] AC 374; DPP v Withers [1975] AC 842.
AFMA was established by the Fisheries Administration Act 1991 (Cth), s5. That Act commenced on 3 February 1992, the first day of the alleged conspiracy according to the particulars appearing in the indictment. That Act, s6, imposed on AFMA a duty to pursue certain objectives. The section reads as follows:
"6 The Authority, in the performance of its functions, must pursue the objectives of:
(a) implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and
(b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development, in particular the need to have regard to the impact of fishing activities on non-target species and the marine environment; and
(c) maximising economic efficiency in the exploitation of fisheries resources; and
(d) ensuring accountability to the fishing industry and to the Australian community in the Authority 's management of fisheries resources; and
(e) achieving government targets in relation to the recovery of the costs of the Authority."
Additional duties as to the pursuit of objectives were also imposed on AFMA by the Fisheries Management Act 1991, s3. That section also commenced on 3 February 1992. The objectives quoted above were repeated in s3(1)(a) to (e). That subsection also required the Minister (apparently the Minister for Primary Industries and Energy) to pursue those objectives in the administration of the Act. Additionally, s3(2) provided as follows:
"(2) In addition to the objectives mentioned in subsection (1), or in section 78 of this Act, the Minister, AFMA and Joint Authorities are to have regard to the objectives of:
(a) ensuring, through proper conservation and management measures, that the living resources of the AFZ [the Australian Fishing Zone] are not endangered by over-exploitation; and
(b) achieving the optimum utilisation of the living resources of the AFZ …".
According to the written opening, quotas for the taking of orange roughy in the relevant fishery during the year 1992 were purportedly imposed by the Minister by means of a management plan under the Fisheries Act 1952 (Cth), but that instrument was declared void on 28 July 1992 by O'Loughlin J: Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 473. The Minister appealed. His appeal was dismissed on 19 February 1993: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381. Thus, it was established in February 1993 that there were no quotas restricting the taking of orange roughy during 1992. However, the Crown alleges that, during that part of 1992 to which the charge relates, forms in which catches of orange roughy were deliberately understated were submitted to AFMA in pursuance of the alleged conspiracy. The Fisheries Management Act, s17, empowered AFMA to determine plans of management for fisheries but, as I understand the written outline, no relevant management plan was in force in 1993, and instead AFMA regulated the taking of orange roughy in the relevant fishery by issuing fishing permits authorising the taking of limited quantities of orange roughy pursuant to that Act, s32. It appears the Crown alleges that throughout 1993 the relevant fishing companies continued to catch excessive quantities of orange roughy, and that, in pursuance of the alleged conspiracy, forms falsely understating the quantities taken were submitted to AFMA.
It appears from the material provided to me that the Crown contends that the understatement of the relevant catches had, and was always likely to have had, two main consequences. The first concerns a practice whereby officers of AFMA used to record details of the quantities of orange roughy that permit holders were allowed (or purportedly allowed) to catch, their catches from time to time, and the balances that they thereafter were allowed to catch. (For reasons which I do not understand, the amount subtracted after a catch was known as a "decrement", and the process of subtracting it from the annual quota was referred to as "decrementing the quota".) The understatement of catches obviously made these calculations and records inaccurate. Secondly, it is contended that, as a result of the understatement of the catches of orange roughy taken by the two relevant companies during the period of the alleged conspiracy, AFMA used inaccurate information in determining from time to time the annual total allowable catch ("TAC") of orange roughy that it would permit to be taken in the relevant fishery, and the quotas limiting the maximum quantities of orange roughy that individual vessels or permit holders were permitted to take from the fishery from time to time. The Crown apparently contends that different decisions would or might have been made as to the total allowable catch and the individual quotas if the alleged conspiracy had not resulted in the compilation of inaccurate data.
The submissions of counsel concern four aspects of the charge of conspiring to defraud the Commonwealth:
(a)Who was allegedly deflected from the performance of their duty or duties?
(b)What duty or duties were they allegedly deflected from performing?
(c)How were they allegedly so deflected?
(d)What intention, if any, is it alleged that the accused had as to the deflection of them from the performance of their duty or duties?
Who?
The starting point is the indictment, which alleges that the five accused "conspired together to defraud the Commonwealth and the Australian Fisheries Management Authority, an authority under the Commonwealth". An officer of the DPP advised by the letter dated 22 March 2000 that "the charge is not one of defrauding but of conspiracy to defraud". She wrote, "The conspiracy to defraud alleged is an agreement by dishonest means to cause officers of the Department of Primary Industries and Energy and the Australian Fisheries Management Authority to be deflected from their duties under the Fisheries Act 1952 and the Australian Fisheries Management Act 1991 and the Fisheries Administration Act 1991 respectively".
Any reliance by the Crown on duties imposed by the Fisheries Act (Cth) was misconceived. It is true that under that Act, s5B, the Minister was required to have regard to certain objectives, worded in identical terms to those in the Fisheries Management Act, s3(2), which I have quoted above. But s5B, like most of the 1952 Act, was repealed with effect from 3 February 1992, pursuant to the Fisheries Legislation (Consequential Provisions) Act 1991.
In the written opening, senior prosecuting counsel referred to AFMA's record-keeping processes, and explained that the information obtained from "quota holders" as to their catches was used in making calculations of "the future quota", but did not identify any officers or classes of officers who carried out duties involving or associated with such processes. In listing the elements of the charge, he said:
"The elements of the charge are that the Defendants:
(a) agreed
(b) to use dishonest means
(c) to induce a course of action
(d) which is or might be prejudicial to the due performance of a public duty
(e) by an authority under the Commonwealth [or the Commonwealth]
(f) knowing that the conduct might cause the authority under the Commonwealth or the Commonwealth to act contrary to its duty.
In the present case, the prosecution contends that the Defendants intended AFMA to act on the false returns submitted."
Then, under the heading "The public duty of the Commonwealth and AFMA from which the Defendants' agreement was to divert it", he set out the statutory objectives that I have set out above, and continued:
"The consequence of the agreement to cause the Minister for Primary Industries and Energy and AFMA to act contrary to their public duties was that the Minister and AFMA were more likely to permit a greater quantity of orange roughy to be taken from the AFZ than would otherwise be the case, including through:
(a) the preparation of management plans (or other controls on the fishery) based on information that less orange roughy had been taken than was in fact the case;
(b) the non-decrement of quota based on information that less orange roughy had been taken by vessels owned and operated by Victrawl than was in fact the case.
The intended means of causing the Minister and AFMA to act contrary to their public duties, namely the submission of false returns as to the quantity of orange roughy caught by vessels owned or operated by Victrawl and consigned to Trident was dishonest."
In the written closing at the committal, the following appears:
"4 The intended outcome of the conspiracy was to have AFMA act on the false figure.
5 It is likely that if AFMA were to act on the false figure it would be deflected from its statutory duties."
The making of a committal order on the conspiracy charge was contested only by the accused Turner, Tedesco and Lee. Separate submissions were prepared in relation to each of them as part of the written closing. Each contained the following:
"'to induce a course of action'
The course of action which the conspirators intended to induce was that AFMA would treat the false returns as if they were true. In particular, this included the decrementing of quota. It was also the case that lower returns meant a higher short term TAC.
'which is or might be prejudicial to the due performance of a public duty'
Briefly stated, the public duty of AFMA involved the management of the fishery. There were various requirements for that management, set out in the legislation. There are duties imposed on the Commonwealth and on AFMA by virtue of the provisions of s 6 of the Fisheries Administration Act 1991 and s 3 of the Fisheries Management Act 1981. There were similar provisions in the Fisheries Act 1952.
…The consequence of the agreement to cause the Minister for Primary Industries and Energy and AFMA to act contrary to their public duties was that the Minister and AFMA were more likely to permit a greater quantity of orange roughy to be taken from the AFZ than would otherwise be the case, including through:
(a)the preparation of management plans (or other controls on the fishery) based on information that less orange roughy had been taken than was in fact the case;
(b)the non-decrement of quota based on information that less orange roughy had been taken by vessels owned and operated by Victrawl than was in fact the case.
The intended means of causing the Minister and AFMA to act contrary to their public duties, namely the submission of false returns as to the quantity of orange roughy caught by vessels owned or operated by Victrawl and consigned to Trident was dishonest.
…'knowing that the conduct might cause the authority under the Commonwealth or the Commonwealth to act contrary to its duty'
The following persons knew that the material was needed for AFMA to protect the species orange roughy:
Sue Willis pages 48, 9 transcript
Corney transcript pages 4, 9, 10.
McKenzie transcript p6
Thorpe P12 para 31 transcript p13.
Cobern P15 para7, 11, transcript p22 on xxn from McTaggart
Smith transcript p 3, 4.
Scharfe (transcript page 27) said that she set up and kept a spread sheet as to quota used."
The Crown's written outline of submissions dated 4 December 2000 included the following:
"Identify the officers of the DPIE and AFMA who are said to have been deflected from their duty.
2 The Prosecution submits that this request is not a request for particulars of the charges before the court. Proof of the identity of the officers of the DPIE and AFMA who may have been deflected from their duties is not relevant to the elements of the offence and is not a matter which the Prosecution is required to prove.
3 The Prosecution is not called upon to demonstrate that particular persons received or acted upon the false returns as the crime is complete at the time the agreement is entered into.
4 Further, the Prosecution need not demonstrate that a particular public officer was the target of the conspiracy. Lord Denning in Welham v Director of Public Prosecutions (1960) 44 Cr App R 124 at 155 said; '…"with intent to defraud" means "with intent to practise a fraud" on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in any way by the fraud, that is enough'."
It is clear enough from all of this that the Crown relies on an allegation that the deflection of AFMA from one or more of its duties was a likely and intended effect of the alleged conspiracy. Actual deflection is not an ingredient of the charge. However, there has been a degree of inconsistency and uncertainty as to whether the Crown relies on allegations that the persons intended and/or likely to be deflected from their duties included the Commonwealth, the Minister, unspecified departmental officers, unspecified AFMA officers, and/or the individuals specified in the written closing. I took Mr Rozenes QC to indicate during his submissions that the Crown would not rely on any allegation that the fraud allegedly agreed to had an intended or likely consequence, the deflection of AFMA officers, rather than AFMA itself, from their duties. However, I do not think he made it clear what the Crown's position was in relation to the Commonwealth, the Minister, and departmental officers (as distinct from AFMA officers). To the extent that his oral submissions clarified what was left uncertain in the documentation as to the identity of the persons intended or likely to be deflected, the particulars provided by the Crown should be written, rather than oral: R v Warburton-Pitt (1990) 92 Cr App R 136 at 139.
In my view, the particulars provided so far are deficient in that they fail to identify the individuals and/or entities, apart from AFMA, if any, whose intended or likely deflection from the performance of their public duties is relied on by the Crown. I am not persuaded that the identities of the AFMA officers responsible for maintaining the records of quotas and catches, and performing the process of subtraction that has been dubbed "decrementing the quota" need to be particularised in order for the accused to know what case they will be required to meet at trial.
What duty or duties?
The written outline of 4 December 2000 contains the following:
"Identify the duties of the officers of DPIE and AFMA who were deflected from their duty
5 This request confuses the 'duties' or 'tasks' of an employee with a public duty. It is public duty which is the relevant issue not the requirement of an individual officer to, for example, file or stamp a particular document.
6 The Prosecution submits that the duties or tasks of specific officers are not relevant to the elements of the offence charged.
7 The Prosecution must show that there was a relevant public duty from which a public officer could be deflected. Those duties have been particularised in the Prosecution's opening statement in the committal proceedings.
8 The Prosecution is not required to show that any person has actually been deflected from their duty, the offence being complete at the formation of the agreement."
I understood Mr Rozenes QC to make it clear during his submissions that the only duties that the Crown relies upon are the statutory duties to pursue the objectives listed in the legislative provisions that I have quoted. Once again, particulars indicating that the Crown case is so confined should be supplied in writing, rather than orally.
How?
The outline of 4 December 2000 included the following:
"Identify how the dishonest means could deceive AFMA
10 As the offence is complete upon the agreement having been formed the Prosecution is not required to demonstrate that DPIE and AFMA were actually deceived. The Prosecution must demonstrate that the dishonest means were capable of imperilling the interests of DPIE and AFMA.
11 The dishonest means were false returns submitted to DPIE and AFMA. DPIE and AFMA managed the orange roughy fishery in the relevant period by means of quota. The returns were false in that they understated the amount of orange roughy taken and consigned by the relevant vessels. A Total Allowable Catch ('TAC') was set for the fishery and the TAC was then divided between the vessels licensed to participate in the fishery. DPIE and AFMA utilised the false returns in decrementing quota allocated to the vessels in respect of which the returns were submitted. The false returns were received by DPIE and AFMA and it was intended that DPIE and AFMA accept the documents as true records of the orange roughy caught and consigned by the vessels concerned.
Identify how the deception was likely to cause DPIE and AFMA to act contrary to their duty.
12 The Prosecution submits that it is not necessary to establish that DPIE and AFMA were deflected from their duty rather that an agreement to use dishonest means was likely to imperil the interests of DPIE and AFMA in the sense of deflecting DPIE and AFMA from their duty.
13 …
14 The dishonest means were likely to imperil the interests of DPIE and AFMA in the sense of deflecting DPIE and AFMA from their duty to manage the fishery. DPIE and AFMA managed the fishery by means of a quota system. It was integral to this system that DPIE and AFMA know how much fish each permit holder took from the fishery. Their management of the fishery was likely to be imperilled by acting on the false information supplied."
It seems to have been assumed on the part of the Crown that the innocent and dutiful recording of false information involves a departure or deflection from duty on the part of a record-keeper, and that the innocent and dutiful making of administrative decisions by a badly informed administrator involves a departure or deflection from that administrator's duty. It is not appropriate that I consider whether those assumptions are sound in determining the present applications.
It is clear enough that the Crown contends that AFMA had a duty to keep records of orange roughy quotas and orange roughy catches, and relies upon the existence of such a duty as a basis for the charge. It is clear enough that the Crown contends that such a duty arose as a consequence of AFMA's statutory obligation to pursue the statutory objectives that I have quoted above. As each such objective was set out verbatim in the written opening, and in the letter from the officer of the DPP dated 28 March 2000, I think it has been made clear that the Crown relies on each such objective.
In relation to the process of establishing annually a total allowable catch of orange roughy for the fishery and quotas for individual vessels or permit holders, the Crown's position is much less clear. It is clear enough that the Crown relies on the proposition that it was a likely consequence of the provision of false information pursuant to the alleged conspiracy that decisions as to the total allowable catch and as to the quotas for individual vessels or permit holders would be affected, in that the taking of inappropriate quantities of orange roughy would be likely to be authorised for the fishery as a whole and for individual vessels or permit holders. But the processes by which such administrative decisions were made, or were likely to be made, have not been revealed in any of the documents by which particulars have been supplied.
The written opening contained the following:
"The reason for the quota system is to enable orderly management of the fishery. A total allowable catch is set on the basis of the scientific information as to the sustainable level of fish which can be taken from it, and then this is divided between those wishing to take fish. Thus the limitation of each fisher to their [sic] quota is designed to ensure sustainable management of the fishery.
The information obtained from quota holders as to their catch of fish is also important because calculations of the future quota are made on the basis of the fish in fact taken. Where a certain number of fish are taken in a certain year, it is assumed that the balance of the fish stock is still there and available to be caught in the future. If the true figures of fish taken were known, the managers of the fishery could have taken very different decisions as to the availability of the fishery for further exploitation."
No more than this has been revealed by way of particulars of the manner in which anyone was allegedly deflected from the proper discharge of any duty as to the imposition of quotas for the taking of orange roughy for the fishery as a whole or for individual vessels or permit holders. Under the Fisheries Administration Act, s92(1), AFMA has the power to delegate any of its powers and functions to its directors, committees, employees or contractors. Under s92(2), it has the power to give directions to its delegates. Under the Fisheries Management Act, it can limit the taking of a particular species in a particular fishery, or by a particular individual or entity, either by a management plan under s17 or by the specification of conditions in a fishing permit pursuant to s31(7). In order for the accused to know what case they will be expected to meet at trial, I believe they need particulars as to the process of decision-making as to orange roughy quotas that the Crown contends was likely to be affected by the provision of false information as to catches. Information would be needed as to whether the practice, or intended practice, of AFMA was to proceed by way of management plans or to issue fishing permits in accordance with some sort of policy, or to make ad hoc decisions as to individual permits. Information would be needed as to whether it was the practice or intended practice of AFMA to make such decisions at its meetings, or by delegates, and, if so, whom. Information would be needed as to the practices or intended practices of AFMA as to the preparation of recommendations and reports in the course of that decision-making process. In short, the accused would need to know what was done, or intended to be done, with information as to orange roughy catches, and how it was acted on, or likely to be acted on, at all stages of the decision-making process, whatever those stages were, stage by stage. Bald assertions that the information as to the catches of each permit holder was taken into account, and that it was assumed that any fish not reported caught were still in the water, do not give an accused person or defence counsel sufficient detail of the prosecution case to enable such assertions to be tested or contradicted. The way or ways in which information as to orange roughy catches was acted on or likely to be acted on from time to time in the determining of future quotas or restrictions needs to be particularised so as to acquaint the accused and their counsel with the Crown case and confine its scope. If the decision-making processes of AFMA remain unparticularised, there is a risk that they will not be fully known to the accused, and that the accused might be confronted at trial with a suggestion that those decision-making processes were corrupted by the provision of false information in some respect or respects that could not reasonably have been anticipated.
In R v Landy [1981] 1 WLR 355 at 362, Lawton LJ, delivering the judgment of the English Court of Appeal, said:
"In our judgment particulars should have been given for these reasons: first, to enable the defendants and the trial judge to know precisely and on the face of the indictment itself the nature of the prosecution's case, and secondly, to stop the prosecution shifting their ground during the course of the case without the leave of the trial judge and the making of an amendment."
Without particulars of AFMA's actual or likely decision-making processes, the accused in this case might face some risk of the prosecution thinking of new ways in which the provision of false information might have had an impact on the determination of quotas for the total allowable catch for the fishery or for individual vessels or permit holders.
Counsel for the accused, Turner, Mr Boucaut, emphasised that the particulars supplied in the written opening as to how the Minister and AFMA might act contrary to their public duties were not exhaustive. It was said therein that they "were more likely to permit a greater quantity of orange roughy to be taken from the Australian Fishing Zone than would otherwise be the case including through [my emphasis]:
(a) the preparation of management plans (or other controls on the fishery) based on information that less orange roughy had been taken than was in fact the case;
(b) the non-decrement of quota based on information that less orange roughy had been taken by vessels owned and operated by Victrawl than was in fact the case."
The use of the words "including through" results in those particulars not being exhaustive, and in the Crown remaining free to shift its ground in the manner disapproved of in Landy. Thus it is not clear whether the Crown might also assert, for example, that the provision of false information as to orange roughy catches in pursuance of the alleged conspiracy was likely to have deflected AFMA from the performance of its duties by means of prosecutions or the enforcement of quota restrictions. AFMA has a power under the Fisheries Management Act, s83(2), to give its officers directions as to the exercise of their powers, including their enforcement powers under s84(1). Those powers include powers of search, seizure, sale, and even arrest without warrant. In the course of argument as to the present applications, defence counsel speculated as to whether or not it might be the Crown case that the performance of prosecutorial or enforcement roles was somehow affected or likely to be affected by the alleged conspiracy.
In my view the particulars provided so far are deficient in that they do not reveal how it is alleged that the provision of false information as to the quantities of orange roughy taken by Victrawl and Trident was likely to affect decision-making as to total allowable catches of orange roughy for the relevant fishery and individual quotas of orange roughy that would be permitted to be taken in that fishery by particular vessels or permit holders. Particulars should be supplied as to (a) who determined what the total allowable catch of orange roughy would be and what each individual quota of orange roughy would be; (b) the manner in which the false information as to the quantities of orange roughy taken by Victrawl and Trident was likely to be used in the making of such decisions, including particulars of the ways in which such false information was likely to be used in the making of reports and recommendations, and by what persons or classes of persons, in the course of the decision-making process.
Further, I think that the particulars provided so far are deficient in that they do not identify the means, if any, by which the Crown alleges, as part of its case, that the provision of such false information was likely to have an impact on the discharge of anyone's public duty, otherwise than through the preparation of management plans (or other controls on the fishery) based on such false information, and the preparation of inaccurate records based on such false information.
What intention?
The Crown alleges in the particulars in the indictment that the five accused "conspired together to defraud the Commonwealth and the Australian Fisheries Management Authority … by dishonestly agreeing to cause and permit false returns to be submitted to the Department of Primary Industries and Energy and to the Australian Fisheries Management Authority …".
Nothing was said in the indictment as to the accused adverting to anyone's public duty, agreeing to attempt to deflect anyone from doing a public duty, agreeing to deceive anyone into acting contrary to a public duty, agreeing to cause anyone to compile inaccurate records as to the decrementing of quotas or otherwise, or deceiving AFMA into fixing inappropriate total allowable catches or individual quotas for the taking of orange roughy from the fishery.
It is clear from the particulars provided in the letter dated 22 March 2000, written on behalf of the DPP, that the Crown was then alleging "an agreement by dishonest means to cause officers … to be deflected from their duties …". The duties in question were therein particularised as:
"The duties to fulfil the objectives set out in s5B of the Fisheries Act 1952, s6 of the Fisheries Administration Act 1991 and s3 of the Australian Fisheries Management Act 1991."
It does not necessarily follow that an intention to deflect any particular officers from their duties was being alleged, but the letter appears to involve an assertion that the existence of statutory duties was adverted to, and that an agreement to deflect officers from those statutory duties was made.
At the time of the written opening, the Crown's position was that it was an element of the charge that the defendants made their agreement "knowing that the conduct might cause the authority under the Commonwealth [ie, AFMA] or the Commonwealth to act contrary to its duty". See item (f) in the list of the elements of the charge quoted above. The written opening went on to contend that the defendants "intended AFMA to act on the false returns submitted". It is not clear from the written opening whether it was then alleged that AFMA was intended to act on the returns only in the "decrementing of quota", or whether the Crown alleged that the defendants intended that the false information be relied upon in AFMA's planning and management of the fishery.
The letter from the DPP dated 6 June 2000 contained the following:
"It is not the Crown case that your clients intended to deflect AFMA from its duty. It is alleged that your clients agreed to use dishonest means to deceive AFMA which deception was likely to cause AFMA to act contrary to its duty."
That letter apparently indicated a change of mind on the part of the Crown. Rather than going so far as to assert that the existence of statutory duties was adverted to, and that the alleged conspirators agreed to cause officers to be deflected from the statutory duties, the Crown's new position, as at 6 June 2000, was that it did not need to prove that any public duties, statutory or otherwise, were adverted to, but only that a deception as to matters of fact was agreed to, and that AFMA acting contrary to its duty was a likely consequence. I need not consider, in the context of the present applications, whether an intention that a public officer or authority act contrary to his or its duty is an essential ingredient of the type of fraud that this case is concerned with. The Crown's position, as at 6 June 2000, appears to have been that it was not.
At the end of the committal, the Crown's contention was as set out in par4 of the written closing quoted above: "The intended outcome of the conspiracy was to have AFMA act on the false figure." At that time the Crown was not just alleging that the defendants intended AFMA to act on the false information in "the decrementing of quota". It seems from the last sentence in the passage under the heading "to induce a course of action" quoted above that the Crown was then contending that the defendants intended that understating the catches would result in a "higher short term TAC", ie, that AFMA would fix a total allowable catch for orange roughy for the whole fishery that would be higher than it otherwise would have been.
There is nothing in the outline of 4 December 2000 that sheds any light on the intention question. The written closing was thus the Crown's last communication on the subject. Although the Crown then alleged that the defendants in fact intended to induce AFMA to act contrary to its duty, both in the decrementing of quota and in the fixing of a higher total allowable catch, it was not then asserted that such an intention was an ingredient of the alleged crime of conspiracy to defraud the Commonwealth. On the contrary, the written closing contained the following in relation to each of the accused, Turner, Coulston and Lee:
"The elements of the charge of conspiracy are that the Defendants:
(a) agreed
(b) to use dishonest means
(c) to induce a course of action
(d) which is or might be prejudicial to the due performance of a public duty
(e) by an authority under the Commonwealth [or the Commonwealth]"
That list of elements of the crime is ambiguous. One possible interpretation is that the Crown needs to prove that the accused knew that the intended course of action was or might have been prejudicial to the due performance of a public duty. The other interpretation is that the Crown needed to prove only that, as an objective fact, the intended course of action was or might have been prejudicial to the due performance of a public duty. The fact that a submission was made, at the end of a contested committal, that the defendants must have intended to cause the Minister and AFMA to act contrary to their public duties does not necessarily mean that the Crown contends that the existence of such an intention is an essential ingredient of the crime alleged.
In my view, the particulars supplied so far are deficient, in that they do not make it clear whether the Crown contends that, as an ingredient of the crime alleged, the accused had such an intention.
Conclusion
Mr Rozenes QC said during argument that it was proposed to deliver to counsel for the accused a "mini opening" in which the Crown would reparticularise the charge in a document that would provide an outline of the way in which the case is proposed to be opened to the jury. It was not submitted on behalf of any of the accused that the Crown should not be allowed a further opportunity to provide proper particulars. It was not submitted on behalf of any of the accused that further particulars should be incorporated into the indictment by amendment, rather than being supplied to counsel or to the solicitors for the accused. Although the Criminal Code does not expressly empower me to make an order for the delivery of particulars, there is ample authority establishing that the Court has inherent authority to make such an order: Johnson v Miller (1937) 59 CLR 467 at 497; Ex parte Graham; re Dowling [1969] 1 NSWR 231 at 240. I have already adjourned the proceedings until 6 February 2001 for mention. The Crown should be required to deliver particulars in accordance with these reasons prior to that day.
I have therefore decided to order the Crown to deliver to the solicitors for each accused on or before 5 February 2001 particulars of (a) the identities of the persons or entities allegedly deflected from the performance of their duty or duties; (b) the duty or duties that each of them was allegedly deflected from performing; (c) the manner in which they were allegedly so deflected; and (d) the intention, if any, that it is alleged that each accused had as to the deflection of them from the performance of such duty or duties.
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