R v Turner (No 10)

[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…

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case R v Turner (No 10) involved Phillip Bruce Turner, Mervyn Robin Lee, Cornelius Marinus Jansen, Daren Te Ariki Charles Coulston, and Antonio Tedesco, who were charged with conspiracy to defraud the Commonwealth and the Australian Fisheries Management Authority. The accused were alleged to have conspired to submit false returns regarding orange roughy catches in 1992 and 1993. The legal issues revolved around the legitimacy of certain paragraphs in a notice issued under the Criminal Procedure (Attendance of Witnesses) Act 1996, which sought specific documents from the Commonwealth Director of Public Prosecutions. The Crown argued that these paragraphs constituted an abuse of process and were essentially "fishing" for evidence.

The court examined whether the documents sought had a legitimate forensic purpose or if they were merely being used to uncover evidence, which is not permissible. It was established that the principles governing subpoenas in criminal cases apply similarly to notices under the 1996 Act. The court concluded that there was no concrete evidence to suggest that the documents in question would provide any material assistance to the defence in relation to the applications for dismissal or stay of proceedings. Consequently, the court found that the paragraphs in question lacked a legitimate forensic purpose and were indeed an attempt to "fish" for evidence, thus ordering them to be struck out.

The final orders of the court involved the striking out of specific paragraphs of the notice, preventing any potential abuse of process in the upcoming legal proceedings against the accused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established