R v Turner (No 13)
[2001] TASSC 104
•24 August 2001
[2001] TASSC 104
CITATION: R v Turner (No 13) [2001] TASSC 104
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: 24 August 2001
DELIVERED AT: Hobart
HEARING DATES: 23 July - 24 August 2001
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law - Evidence - Confessions and admissions - Statements - Generally - Statements in pursuance of conspiracy - Whether admissions.
R v G, F, S and W [1974] 1 NSWLR 31, followed.
R v Horton (1998) 45 NSWLR 426, distinguished.
Ibrahim v R [1914] AC 599; Edwards v R (1993) 178 CLR 193; R v S (1953) 53 SR(NSW) 460; R v Veneman [1970] SASR 506; R v GH (2000) 105 FCR 419, referred to.
Aust Dig Criminal Law [464]
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 104
Number of Paragraphs: 27
Serial No 104/2001
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 13)
REASONS FOR DETERMINATION BLOW J
24 August 2001
On 21 August 2001 I determined that the rule of evidence as to the inadmissibility of involuntary confessions and admissions cannot have any application to the SEF2 forms relied on by the Crown in this case. These are my reasons for that determination.
The accused have been charged on a single count of conspiring to defraud the Commonwealth and the Australian Fisheries Management Authority ("AFMA"), an authority under the Commonwealth. The essence of the Crown case is that the accused conspired to cause and permit false returns understating catches of orange roughy to be submitted to AFMA in 1992 and 1993. Returns as to orange roughy catches were routinely submitted during those years by the masters or operators of fishing vessels, and by fish processors, who were also referred to as receivers. AFMA commanded them to submit such returns, but for various reasons lacked any power to require such returns to be submitted. The returns were submitted on SEF2 forms provided by AFMA, which contained warnings to the masters and operators of vessels as to the suspension of "quota units" or fishing permits if the forms were not completed and submitted promptly. They also contained warnings to masters, operators and receivers as to fines for failing to provide the required information, or for not forwarding the returns within the required time, and as to more substantial fines and/or imprisonment for providing false or misleading information.
The Crown alleges that, in a large number of such returns by masters, operators and receivers, catches of orange roughy were substantially understated. It proposes to rely upon these returns as evidence tending to prove that there was a conspiracy, tending to prove that the accused were parties to the conspiracy, and tending to prove that the forms were submitted in furtherance of the conspiracy.
Defence counsel submitted that, because of the warnings as to administrative penalties and fines printed on the forms, the forms were submitted involuntarily, or at least that there was scope for a finding of fact that the forms were submitted involuntarily. It was submitted that any false assertions as to catches contained in such forms that were submitted to AFMA amounted to admissions for the purpose of the common law rule that a confession or admission not made voluntarily is not admissible as evidence against its maker. I was asked to determine pursuant to the Criminal Code, s361A, prior to the empanelment of a jury, that the returns furnished to AFMA were inadmissible on this basis. The Crown contended that there was no scope for the operation of the common law rule as to involuntary admissions in relation to the relevant forms. With the concurrence of the Crown and defence counsel, I decided to determine as a threshold question whether the common law rule could apply in relation to those forms.
For the purpose of determining that question, I think it is very important to distinguish three different types of statements or utterances by accused persons: (a) direct and express confessions and admissions; (b) false exculpatory statements that constitute evidence of guilty knowledge, sometimes referred to as "implied admissions"; and (c) other statements or utterances that are neither confessions nor admissions, nor "implied admissions", but which amount to evidence tending to prove guilt.
The first of these categories involves a direct confession of guilt, or at least of having committed the act charged. A good example is the statement by the appellant in Ibrahim v R [1914] AC 599, which was translated as "… without a doubt I killed him". This category also includes direct admissions which, whilst not amounting to full confessions, concede one or more elements of the Crown case, eg, a statement by a man accused of poisoning someone using arsenic that he had some arsenic but did not commit the crime.
The second category relates to lies, told by an accused person as to the subject matter of the Crown case, of the sort discussed in Edwards v R (1993) 178 CLR 193. In the principal judgment in that case, at 208, Deane, Dawson and Gaudron JJ said the following:
"Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt."
In the same case, Brennan J treated such a lie as an implied confession, suggesting (at 201 - 202) that when appropriate a jury should be asked to consider whether "the true inference to be drawn from his [the accused's] conduct is that he has confessed his guilt".
The third category includes lies told by an accused person, not for the purpose of exculpation, which are admissible on some basis other than that discussed in Edwards. For example, on a trial for perjury, evidence that the accused person gave false evidence would not amount to evidence of an admission by the accused falling within the first of my three categories, nor of an "implied admission" by the accused falling within the second category, but would nevertheless be admissible.
The making of false statements by any of the accused, or anyone in privity with them, in the SEF2 forms plainly could not amount to an admission in the first category, nor to an "implied admission" in the second category. Assertions as to the quantity of orange roughy caught on a particular voyage or received for processing on a particular day could not possibly be regarded as an admission of the crime of conspiracy, or of any element of the Crown case. At most, the persons said to have completed and submitted the forms acknowledged that fish were caught by a particular vessel and delivered to a particular processor on a particular day, but that much does not appear to be in controversy in this case. Thus no fact that is now an element of the Crown case was admitted by the completion and lodging of any form. Similarly, there is no basis for regarding the completion and lodging of any form as an "implied admission" in the Edwards sense. It has not been contended that any form was completed or lodged in response to an investigation, nor for the purpose of exculpation in respect of participation in a conspiracy or the submission of one or more earlier false returns. It has not been suggested that overstating the quantity of orange roughy caught on a particular voyage or received on a particular occasion could have been exculpatory in relation to any earlier transaction or arrangement in any way. Yet the defence contends that the alleged understatements of orange roughy quantities in the SEF2 forms amounted to admissions for the purpose of the common law rule as to the inadmissibility of involuntary admissions.
Mr Melick SC relied on some decisions of the New South Wales Court of Criminal Appeal, including R v Horton (1998) 45 NSWLR 426 and R v Esposito (1998) 45 NSWLR 442. Esposito concerned only "implied admissions" during a police interview, and is therefore not directly relevant to the SEF2 forms. However Horton concerned a comment by an accused person that could not be regarded as an admission in the strict sense, and was not relied on as an "implied admission" in the Edwards sense. The appellant in that case had been convicted of murdering a man by stabbing him. At her trial, her defence was that she had been so drunk that she lacked the intent that was required for her to be guilty of murder. In order only to rebut that defence, the Crown led evidence that, when a policeman arrived after the stabbing and asked what had happened, the appellant told him, "He fell on the knife." It was argued that that statement suggested that the appellant had not been too drunk to form the requisite intent. The Court of Criminal Appeal held that such a statement was adverse to the interest of its maker in the outcome of the proceeding, and therefore constituted an admission for the purposes of the Crimes Act 1900 (NSW), s424A. Mr Melick SC submitted that I should follow Horton.
However Horton was decided on the basis of the definition of "admission" in the Evidence Act 1995 (NSW), whereas I am concerned with the common law rule as to involuntary confessions and admissions. In Horton, Wood CJ at CL, with whom Sully J and Ireland J each agreed, said the following at 434:
"It is not entirely clear whether, at common law, or under previous statute law, an exculpatory statement, which was made for the purpose of avoiding incrimination; or of deflecting police investigation, would qualify as a confession or admission."
His Honour proceeded to review a number of cases at 434 - 437 before concluding, without determining what had been the position at common law, that the statement to the constable constituted an admission for the purpose of the applicable statutes. It follows that Horton must be distinguished. That case is certainly not authority for the proposition that any statement, evidence of which would be adverse to the interest of its maker, constitutes an admission which enlivens the common law rule.
Another thorough review of authorities relevant to this point was undertaken by Spender J, presiding in the Full Court of the Federal Court, in R v GH (2000) 105 FCR 419 at 422 - 425, and produced the opposite result in relation to the ACT statutory provisions that corresponded to those considered in Horton. However I see no need to determine whether an "implied admission" in the Edwards sense is an admission that enlivens the common law rule as to involuntary admissions. In my view, the false statements said to have been made in SEF2 forms by masters, operators and receivers are incapable of constituting "implied admissions" in the Edwards sense, since they could not in any way have exculpated their makers or those in privity with their makers in relation to any earlier events, transactions or arrangements.
There is simply no authority for the proposition that, apart from confessions and admissions in the conventional sense, and implied confessions and "implied admissions" in the Edwards sense, statements that could be used as evidence against their makers amount to admissions for the purposes of the common law rule. I accept the submission of Mr Rozenes QC that Hazim v R (1993) 69 A Crim R 371 is authority to the contrary. Although that case concerned the meaning of the word "admission" in a Victorian statute, it concerned the ordinary meaning of that word. The Victorian Court of Criminal Appeal held that, when a police sergeant asked the applicant after an interview whether he was satisfied with his treatment by the interviewing police, his affirmative answer, whilst it was admissible as evidence against him, did not constitute an admission. The common law rule has conventionally been confined to confessions and admissions. It might extend to "implied admissions" in the Edwards sense, but it has certainly never been said to extend to statements generally.
It is true that Lord Sumner, delivering the judgment of the House of Lords in Ibrahim (supra) at 609 used the word "statement" in his formulation of the common law rule:
"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."
However that case was concerned with the confessional statement, "Some three or four days he has been abusing me; without a doubt I killed him." It was not concerned with the classes of statements to which the rule does or does not apply.
For the Crown, Mr Rozenes QC relied on a number of authorities which establish a rule that statements made as part of the commission of a crime cannot be regarded as confessions of that crime or admissions relating to that crime. In R v S (1953) 53 SR(NSW) 460, the accused was charged with knowingly giving false testimony to a Royal Commissioner. It was submitted that the allegedly false testimony had been induced by an untrue representation made by the Commissioner, and that evidence of what the accused had said was inadmissible by reason of the Crimes Act (NSW), s410(1), which made a "confession, admission, or statement" inadmissible if induced by any untrue representation made to the accused. By majority, the Court of Criminal Appeal held that s410 was inapplicable. At 469 - 470, Street CJ said the following:
"Section 410 only applies when something is said by an accused person relating to some previous happening or events on which a criminal charge against such person is being made. Before the section can operate, there must be a person whose words are sought to be tendered in evidence against him in proof of his guilt of the offence of which he is suspect. The use of the words of the confession or statement does not constitute the offence. They can only have relation to and constitute evidence of some antecedent incident or incidents which are themselves the foundation of a charge. The words used may amount to a confession, that is to say a declaration that the suspected person is in fact guilty of the offence in question, or an acknowledgment of the truth of facts which would establish the commission of the crime alleged against him. Or his words may constitute an admission, that is a statement by him recognizing the truth of certain matters material in considering the question of his guilt or innocence. Thus an accused man charged with murder would properly be said to confess if he stated that he killed the deceased by administering arsenic to him in his food. If, on the same charge, he merely stated that he had arsenic in his possession, that would properly be described as an admission, but it would not be a confession of guilt. The two words are not mutually exclusive, for a man may be said to admit his guilt and this would be equivalent to a confession. Neither of these words apply to the evidence given by S on which the present charge was based. A statement, as that word is used in the section, means some written or oral communication, ejusdem generis with a confession or an admission, containing incidental matter relevant to a particular charge under consideration and to the issue of the accused's guilt or innocence of that charge: Attorney-General for New South Wales v Martin (1909) 9 CLR 713; 5 Austin Digest 687. But whether the words in question of the person accused are properly described in any particular case as a confession, an admission or a statement, they must always and in every case have reference to some antecedent events constituting the subject matter about which the accused is speaking. To come within the section the accused must confess to, or admit, or make statements about some past and independent happening of which his words form no part themselves. They must relate to some previous crime or to some charge then pending or some criminal proceedings then in contemplation against him."
At 477, Owen J said the following:
"The confessions, admissions and statements to which s410 refers are confessions, admissions and statements made by a person accused of committing an offence, and having a relevant bearing on the issues whether the offence was committed and whether the accused committed it. They are confessions, admissions or statements made after the happening of the offence, and in some manner linking or tending to link the accused with it, either standing alone or when considered with other circumstances disclosed in evidence. Here the statement made by S in the first portion of his evidence was the matter which was said to constitute the very offence with which he was charged, namely false swearing, and s410 can have no application to such a case as that. The making of the statement was the offence charged, and a man charged, for example, with murder cannot claim to be acquitted on the ground that he was persuaded to commit the murder by threats or promises or by a false representation that murder is no crime."
In R v Veneman [1970] SASR 506 at 507 Bray CJ said:
"A confession or admission must logically follow the thing confessed or admitted. A statement or an act cannot in my view be at the same time the commission of the crime and a confession of the crime."
In R v G, F, S and W [1974] 1 NSWLR 31, the accused were charged with conspiracy to pervert the course of justice by bribing police officers to give protection in relation to illegal abortions which they intended to carry out. Police officers had had a number of conversations with the accused, each falsely representing that he was willing to be a party to the alleged conspiracy. The trial judge had decided that all the conspirators had said to the police officers thereafter had amounted to confessional material induced by such untrue representations. He had therefore rejected the evidence that the Crown had sought to lead as to conversations with the police officers, and directed an acquittal. The Crown appealed by way of case stated. The Court of Criminal Appeal was again concerned with the proper interpretation of the Crimes Act (NSW), s410(1), whose terms I have already referred to. At 41 - 42, their Honours said the following:
"The law as to rejection of statements improperly obtained, whether under common law principles or under statutory provisions such as s410, is in our view built upon the proposition expressed in R v S (1953) 53 SR(NSW) 460, at 469, 470, 477; 70 WN 274, at 280, 281, viz, there is a past event or crime and a person subsequently or then charged is speaking of that past event or crime so as by his words to acknowledge or admit to its existence. The submission which was made here, that s410 can, if there has been an antecedent untrue representation by a person in authority, apply to a statement which is itself a crime or which is made in the course of committing a crime and for the purpose of furthering it, eg, the offer of a bribe or a call to murder by one bank robber to another during the robbery is entirely without authority. As Herron J said in R v S (supra) at 483: 'It is no defence to the commission of crime in this country to assert that the accused was persuaded to do what he did because of the blandishments of some person in authority'."
Their Honours went on to consider the English case law as to conspiracy, particularly Director of Public Prosecutions v Doot [1973] AC 807, which had reversed the Court of Appeal decision on which the trial judge had relied. At 44 their Honours concluded:
"In the light of the considerations set out above it follows that the statements made by the conspirators to the police are to be regarded as conduct on their part attempting to further and implement their initial unlawful purpose. The very making of those statements showed, when they were made, that the initial unlawful purpose was then still in existence. Their statements are to be regarded as conduct showing, not that the crime of conspiracy had been committed, but that the crime of conspiracy was being committed ¾ that the conspiracy was on foot as the indictment alleged it was. The statements, in our view, cannot be regarded as 'confessions', 'admissions' or 'statements' as to past events or past crime …".
In Feiler v McIntyre [1974] 2 NSWLR, Isaacs J followed R v S (supra) and R v G, F, S and W (supra). A detective had given evidence before a magistrate of a conversation with a reputed prostitute at her home when he purported to make arrangements to have sex with her. Isaacs J held that the Crimes Act (NSW), s410(1), had no application to the conversation since it did not involve a confession, admission or statement with respect to any past offence, but constituted, or was evidence of, an offence in itself.
In R v GH (supra), the accused had been charged with conspiring with various persons to pervert the course of justice. He had been shot. He told police officers that he had accidentally shot himself. There was evidence that he had fallen out with a number of his alleged co-conspirators over arrangements for the distribution of drugs; that he had been told he would be killed unless he submitted to a form of punishment by way of gunshot wound; and that it had been agreed that he would let himself be shot and tell the police, if he was asked, that he had shot himself accidentally. The Crown contended that a statement by the accused to the police that he had shot himself accidentally constituted an admission for the purpose of the relevant statute, which applied to all threats of violent conduct, whether made by persons in authority or others. The Crown contended that what the accused had said amounted to an "implied admission" in the Edwards sense, and that such "implied admissions" constituted admissions for the purpose of the relevant statute. All three judges in the Full Court held otherwise. Spender J also held, at 425 - 426, that an overt act in furtherance of a conspiracy could not constitute an admission, citing the comments of Bray CJ in R v Veneman (supra). The other members of the Full Court did not deal with that point.
Mr Rozenes QC submitted that the overt acts of conspirators done pursuant to a conspiratorial agreement, and in furtherance of the conspiracy, are part of the crime of conspiracy. It followed, he submitted, that lies told pursuant to the conspiratorial agreement and in furtherance of the conspiracy constitute part of the criminal behaviour that is the subject of the conspiracy charge, and, in the light of the authorities I have referred to, cannot amount to admissions for the purposes of the common law rule as to involuntary admissions.
Mr Abbott QC pointed out that, in particulars of the charge that had been supplied in correspondence, the Crown had advised that it was alleged that the accused "agreed to use dishonest means to deceive AFMA" and that a request for further particulars as to the alleged dishonest means produced a letter saying that "the 'dishonest means' was [sic] the forwarding of SEF2 forms, which contained identical false figures in Parts B and C". His point was that the submission of forms containing false information was not alleged to be part of a crime of conspiracy, but to be the product of the crime of conspiracy. Some support for that argument is to be found in Dr Gillies' text The Law of Criminal Conspiracy 2 edn at 16, in the following passage:
"The crime of conspiracy… consists of the concluding of an agreement between two or more persons for the commission of a crime or crimes, or other unlawful purpose or purposes. The culpable doing, or actus reus, of the crime consists in the physical acts ¾ words or gestures ¾ by which the conspirators signify their mutual consent to this consensus. As soon as this agreement is formed the crime is complete. Any such overt acts as may be performed in the commission or attempted commission of its unlawful objects are not part of the actus reus."
The learned author cited many cases as authority for the proposition advanced in the last quoted sentence.
Mr Melick SC submitted that R v G, F, S and W (supra) was wrongly decided, and that Spender J was wrong in R v GH (supra). He did so on the basis that the overt acts done in furtherance of a conspiracy do not form part of the crime of conspiracy, but are no more than evidence of the commission of that crime, which is committed by entering into an agreement and, in the case of a continuing conspiracy, by sustaining that agreement. I do not think I need to decide whether overt acts done in furtherance of a conspiracy do or do not form part of the actus reus of the crime of conspiracy. Whether they do or not, the decision of the New South Wales Court of Criminal Appeal in R v G, F, S and W is authority for the proposition that any such overt act should be treated in the same way as an act constituting the commission of a crime for the purpose of the principle that a confession, admission or like statement is something that relates to previous conduct. As the decision of an appellate court of another State, that decision is of high persuasive authority. It is supported by the judgment of Spender J in R v GH. There is no authority directly to the contrary, and in my view it is not contrary to principle.
As can be seen from the second passage that I quoted from R v G, F, S and W above, the Court of Criminal Appeal in that case did not suggest that overt acts done in pursuance of a continuing conspiracy formed part of the commission of the crime of conspiracy, as distinct from "conduct showing … that the crime of conspiracy was being committed". At least generally speaking, an overt act done pursuant to a continuing conspiracy will not involve the acknowledgement of the doing of any past act, and so will not constitute a confession or admission in the ordinary sense of those words. The alleged understatement of orange roughy catches in SEF2 forms did not involve any acknowledgement as to the doing of any past act, and thus cannot constitute a confession or admission. In my view it is possible for a participant in a continuing conspiracy, during its continuance, to acknowledge the doing of some past act, and thereby to make a confession or admission in relation to the crime that is still being committed, but the facts alleged in this case are incapable of being viewed in that way. The alleged making of false statements as to orange roughy catches in SEF2 forms, and the alleged submission of those forms, must be viewed in the same way as the evidence discussed in R v G, F, S and W ¾ as evidence that the alleged crime of conspiracy was being committed, and not as any sort of acknowledgement as to any past act.
For these reasons I consider that any false statements as to orange roughy catches made in SEF2 forms relied on by the Crown in this case by any of the accused, or anyone in privity with any of the accused, cannot constitute admissions for the purposes of the common law rule that involuntary admissions are inadmissible as evidence.
Mr Edwardson submitted that none of the fishing licences issued for the year 1992 were valid; that the taking of any of the orange roughy referred to in the relevant SEF2 forms in 1992 was therefore illegal; that each SEF2 form evidencing the taking of any orange roughy in 1992 was therefore inculpatory; and that the relevant forms therefore constituted admissions. I reject that submission. This is not a prosecution for fishing without a licence but for conspiracy to defraud. The admissibility or otherwise of the statements said to have been made in SEF2 forms has to be determined by reference to the charge before the Court, and not any other charge. Although the statements made in the 1992 forms might have implicated their makers in the commission of other offences, they did not involve any concession of any controversial fact forming part of the Crown case in relation to the present charge, and therefore cannot be regarded as admissions for the purposes of it.
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