R v Turner (No 10)
[2001] TASSC 100
•17 August 2001
[2001] TASSC 100
CITATION: R v Turner & Ors (No 10) [2001] TASSC 100
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: 17 August 2001
DELIVERED AT: Hobart
HEARING DATE: 23 July - 17 August 2001
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal law - Jurisdiction practice and procedure - Miscellaneous powers of courts and judges - Notice to witness - Striking out of parts - Legitimate forensic purpose - Fishing.
Criminal Procedure (Attendance of Witnesses) Act 1996 (Tas), s10.
R v Saleam (1989) 16 NSWLR 14; Ali Tastan (1994) 75 A Crim R 498; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; Alister v R (1984) 154 CLR 404; Air Canada v Secretary of State for Trade [1983] 2 AC 394, referred to.
Aust Dig Criminal Law [799]
REPRESENTATION:
Counsel:
Crown: M Rozenes QC, K E Read, J Read & I M Arendt
First Accused: M L Abbott QC, W P Boucaut
Second Accused: A G Melick SC & B R McTaggart
Third Accused: P A Dunn QC & J D Edwardson
Fourth Accused: B J Powell QC & I C Robertson
Fifth Accused: C J Kourakis QC & J M Fuller
Solicitors:
Crown: Commonwealth Director of Public Prosecutions
First Accused: Jennings Elliott as agents for: Iles Selley
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: [2001] TASSC 100
Number of paragraphs: 21
Serial No 100/2001
File No 320/2000
THE QUEEN v PHILLIP BRUCE TURNER,
MERVYN ROBIN LEE, CORNELIUS MARINUS JANSEN,
DAREN TE ARIKI CHARLES COULSTON
and ANTONIO TEDESCO (No 10)
REASONS FOR JUDGMENT BLOW J
17 August 2001
On 15 August 2001 I made an order striking out pars 4, 7, 8, 9(a), 9(d) and 14 of a final notice issued pursuant to the Criminal Procedure (Attendance of Witnesses) Act 1996 ("the 1996 Act"), s10, dated 25 July 2001, and addressed to the Commonwealth Director of Public Prosecutions. These are my reasons for making that order.
The five accused have been charged with a single count of conspiracy to defraud the Commonwealth and the Australian Fisheries Management Authority ("AFMA"), an authority under the Commonwealth, contrary to the Crimes Act 1914 (Cth), s86A. The Crown alleges that they conspired to cause and permit false returns to be submitted to AFMA as to orange roughy catches in 1992 and 1993. The accused have all pleaded not guilty, but a jury has yet to be empanelled. Defence counsel have foreshadowed that they will apply for the charge to be dismissed pursuant to the Crimes Act, s86(7), which permits dismissal when that is in the interests of justice. They have also foreshadowed that they will apply for a permanent stay of proceedings on the indictment. The two applications are likely to be heard together in the near future. The classes of documents described in the relevant paragraphs of the notice were sought by the legal representatives of the accused in connection with the foreshadowed stay application and, I infer, the foreshadowed dismissal application. Senior counsel for the Crown, Mr Rozenes QC, applied for the relevant paragraphs of the notice to be struck out on the basis that the notice would otherwise constitute an abuse of process.
Defence counsel submitted that it was on the cards that the documents described in the relevant paragraphs would provide evidence of impropriety on the part of officers of the DPP and/or AFMA officers, and of the prosecution of the accused being improperly delayed as a result of such officers pursuing collateral, or even improper, objectives.
I think it is clear from the High Court's decision in Walton v Gardiner (1993) 177 CLR 378 that the categories of cases in which a permanent stay of proceedings can be ordered are not closed. In that case, Mason CJ, Deane and Dawson JJ said at 392 - 393:
"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."
For the purposes of the present application, I accept that, in a proper case, a combination of delay in prosecuting and the improper pursuit of collateral objectives could provide a sufficient basis for a stay to be ordered.
Although the indictment in this case relates to fishing that occurred in 1992 and 1993, the present application arises out of events concerning this prosecution that occurred in and after 1996. Police officers had carried out surveillance operations in 1992 and 1993. Search warrants had been executed in December 1993 and June 1994. The preparation of the prosecution and associated investigations were still proceeding during 1996, 1997, 1998 and 1999. Charges were laid in May 1999.
Mr Kourakis QC tendered on the voir dire copies of a series of documents made available to the legal representatives of the accused which give indications as to the history of the preparation of the prosecution and associated activities from 1996 to 1999. A letter written on 30 October 1996 from a solicitor working for the DPP to an Australian Federal Police ("AFP") officer indicates that, by that time, the AFP investigation concerned a company named Victrawl Pty Ltd ("Victrawl"), which was the owner of a number of fishing vessels. It was envisaged by the solicitor that, if the prosecution was successful, the confiscation of major assets, including boats, was possible. It therefore seems that the charging of Victrawl was contemplated. At that stage the DPP was apparently ready to lay a conspiracy charge and some five charges relating to specific occasions when fish were unloaded, but some 86 other charges in relation to specific unloadings were contemplated but not ready to be laid.
Copies of correspondence suggest that during 1997 Victrawl applied to AFMA for the transfer of all its fishing concessions, on the basis that it intended to go into liquidation. It was a proposed defendant. If it divested itself of assets, the remedies provided by the Proceeds ofCrime Act 1987 (Cth) might become unavailable, and a reparation order under the Crimes Act, s21B, might be pointless. The solicitor acting on behalf of the DPP pointed this out to AFMA in a letter dated 23 June 1997. The letter could be interpreted as an implied request to AFMA not to permit any transfers by Victrawl.
An AFMA internal minute dated 30 June 1997 indicates that transfers, or perhaps transfer applications, were received from Victrawl and two other companies, but that AFMA had a policy of not transferring permits or quota units when operators were under investigation or had been charged with fisheries offences or related offences. It appears that, as a result, the proposed transfer did not proceed. It was decided that the solicitor working for the DPP would examine the relationships between the three companies and consider whether all three should be charged. The evidence before me is silent as to the basis upon which charging the companies other than Victrawl was to be considered.
Copies of two letters drafted by the solicitor in early July 1998, only one of which was mailed, indicate that the AFP brief in relation to the proposed conspiracy charge and some 92 individual unloadings remained uncompleted at that time, and that there was a concern that it might not be completed by the end of that month, when the AFP officer with the greatest familiarity with the case was due to be transferred away from Hobart. There are indications that there had been resource difficulties in the AFP's Hobart office, with many officers having resigned or having been transferred.
An AFMA internal minute indicates that on 20 February 1998 the solicitor advised to the effect that the laying of charges against Victrawl and associated entities was progressing, and that AFMA needed to be careful with any transfers and "alterations to registers". This minute indicates that the pursuit of collateral remedies, such as those afforded by the Proceeds of Crime Act, was still being contemplated.
Copies of the minutes of a meeting on 4 March 1998 attended by an AFMA officer, the solicitor and four AFP officers indicate that, at least by then, the AFP was embarrassed by the delay that had occurred in completing the investigation which has led to this prosecution. It appears there was a discussion about narrowing the parameters of the investigation, but that it was agreed that those parameters would not be reduced. The AFMA officer is recorded to have said that the outcome of the prosecution "would be fines and obtain licences". The solicitor is quoted as saying that "If the parameters are narrowed it will have a huge impact on the money and the penalty sought as AGS [the Australian Government Solicitor] will be pursuing imprisonment". The Australian Government Solicitor was acting as the agent of the DPP in Hobart at that time. The AFMA officer apparently said "AFMA are able to recover the value of the catch and the more that is presented the better for AFMA". He is also quoted as saying that AFMA could "take the quota away", apparently referring to the consequences of a successful prosecution. The solicitor is reported to have mentioned that Tasmanian State fisheries licences could be affected because of a legislative requirement as to being a fit and proper person.
An AFMA internal minute of 8 September 1999 indicates that Victrawl's solicitor had written on 20 August 1999 making a fresh request as to the transfer of Victrawl's fishing concessions, but that the DPP had advised that charges might still be laid against Victrawl, and that such charges were dependent upon further enquiries being undertaken by the AFP. The solicitor is said to have believed that the circumstances concerning some apparent licence transfers, which another document suggests might have occurred around Christmas 1990, should be resolved before any transfers proceeded. By the time of this minute, the charge now before the court had been laid, and the accused had also been charged on a number of counts of imposition under the Crimes Act, s29B. It appears that an AFMA officer wrote to Victrawl's solicitor in February 2000 advising that "AFMA cannot effect the transfer of the current holdings until the matters before the court in Hobart are resolved."
It is against that background that the witness notice now under consideration was issued on behalf of the accused. It sought the production of 17 classes of documents. The paragraphs which were challenged read as follows:
"4 Any document recording the reasons of the Commonwealth Director for Public Prosecutions or his delegate for commencing the prosecution of the accused or any one or more of them.
…
7 Any document which refers to the desirability of commencing prosecutions against the accused or any one or more of them or the companies Victrawl Pty Ltd, Rigel Kent Fisheries Pty Ltd or Brentford Pty Ltd for offence(s) committed in the course of fishing for orange roughy in 1992 and 1993 because of an application by Victrawl Pty Ltd to transfer fishing concessions held by it.
8 Any document which refers to any request by AFMA that the Director of Public Prosecutions or the Australian Government Solicitor commence prosecutions against the accused or any one or more of them or the companies Victrawl Pty Ltd, Rigel Kent Fisheries Pty Ltd or Brentford Pty Ltd for offence(s) committed in the course of fishing for orange roughy in 1992 and 1993 because of an application by Victrawl Pty Ltd to transfer fishing concessions held by it.
9 Any document which refers to any request by AFMA that the Director of Public Prosecutions or the Australian Government Solicitor:
(a)commences prosecutions of the accused or any one or more of them for offences committed in the course of fishing for orange roughy in 1992 or 1993;
…
(d)expedite any decision on whether or not to commence prosecutions of the accused or any one or more of them for offences allegedly committed in the course of fishing for orange roughy in 1992 or 1993.
…
14 Any documents recording a communication from AFMA to the Australian Government Solicitor or the Commonwealth Director of Public Prosecutions which refers to any action or contemplated action by AFMA to cancel or suspend the fishing concession of Victrawl Pty Ltd, Brentford Pty Ltd, Rigel Kent Fisheries Pty Ltd or to reduce the quota allocated to any such fishing concession."
The Crown contends that there is no legitimate forensic purpose for seeking access to the documents described in these paragraphs; that they are "fishing"; and that they ought to be struck out so as to prevent the notice being an abuse of process. When an issue as to a legitimate forensic purpose is raised in relation to a subpoena, it is the duty of the court to require the party calling on the subpoena to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought, and to refuse access unless a legitimate forensic purpose is identified: R v Saleam (1989) 16 NSWLR 14; Ali Tastan (1994) 75 A Crim R 498 at 504. A party is not entitled to use a subpoena duces tecum for the purpose of "fishing", ie to seek documents, not for the purpose of supporting his or her case, but to discover whether there is a case at all: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. It may be enough if it appears to be "on the cards" that the documents sought will materially assist the defence: Alister v R (1984) 154 CLR 404 at 414. There needs to be something beyond speculation, or some concrete ground for belief that the documents will support the case of the issuing party: Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 439; Alister (supra) at 456.
In my view the same principles should be applied to a notice to a witness issued pursuant to the 1996 Act. That Act is silent as to the jurisdiction of the court to set aside a notice, or to strike out parts of a notice. I think it must follow that the powers of the court to prevent abuses of its process are as extensive in relation to such notices as they were, and still are in the civil jurisdiction, in relation to subpoenas. It may be that, because of provisions in s14(2) as to intended witnesses who would incur unreasonable hardship by attending court and intended witnesses whose evidence is otherwise available to the court, those factors should now be given greater weight than previously, but those factors are not relevant to the present application. Those are the only provisions in the 1996 Act that seem to me to suggest that a different approach ought ever to be taken.
It has been submitted that the documents described in the paragraphs under challenge are likely to provide evidence that the DPP or his agents, under the influence of AFMA, widened the scope of the investigation and the preparations for a prosecution, in the hope of pursuing Victrawl, its directors, and the assets of Victrawl and its directors, knowing that widening the scope of the investigation and the proposed prosecution would occasion substantial delay, at least partly because of the under-resourcing of the AFP's Hobart office.
In my view there is nothing improper in the DPP or his officers or agents, when deciding whom to prosecute, taking into account any reparation orders, confiscation orders or the like that are likely to be made if the prosecution of a potential defendant is successful. There are such strong public policy considerations underlying legislation like the Proceeds of Crime Act that it would be inappropriate for a prosecuting authority not to take into account any possibility of such collateral orders in deciding whether to prosecute, or whom to prosecute. The evidence that I have referred to does not suggest any possibility of impropriety in relation to the contemplation of such orders being made if Victrawl or its directors were prosecuted.
AFMA has discretions to permit or refuse transfers of fishing permits and similar valuable rights under the Fisheries Management Act 1991 (Cth). Any operator in the fishing industry facing prosecution and, if unsuccessful, the possible confiscation of substantial assets and the possible cancellation of fishing concessions pursuant to the Fisheries Management Act, s39, would be likely to dispose of such assets and fishing concessions if given a chance to do so, perhaps even if innocent of any offence. It is therefore quite appropriate for AFMA to have a policy of not permitting transfers that would or could defeat any of the collateral remedies that are available when a prosecution succeeds. On the basis of the evidence I have referred to, I therefore do not see any possibility that the documents sought will provide evidence of any impropriety in relation to the refusal or deferment of transfers.
For these reasons, I think the evidence does not provide any basis for thinking that the documents sought might afford evidence of any impropriety that might assist the accused in applications to dismiss the charge or stay the proceedings. I think the same can be said as to evidence of delay. The reasons for the delay in bringing this prosecution will have to be taken into account in determining any dismissal or stay application. As the documents that I have referred to indicate, a great deal is known by the accused and their legal representatives as to the history of the investigation and preparations that led up to the laying of the present charge. I have no reason to think that the documents sought by the paragraphs under challenge might materially assist the accused or their legal representatives by providing greater detail as to the history of the matter and the reasons for the delays prior to the laying of the charge.
For these reasons, I concluded that no legitimate forensic purpose for the paragraphs under challenge had been identified, and that they were "fishing". I therefore ordered them to be struck out.
3
1