R v Turner (No 15) - [2001] TASSC 144

[2001] TASSC 144

CITATION: R v Turner (No 15) [2001] TASSC 144

PARTIES:  R
  v
  TURNER, Phillip Bruce

LEE, Mervyn Robin
JANSE N, 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:  18 December 2001
DELIVERED AT:  Hobart
HEARING DATES:  23 July - 8 November 2001
JUDGMENT OF:  Blow J
CATCHWORDS:

Criminal Law - General matters - Ancillary liability - Conspiracy - Practice and procedure - Dismissal - Interests of justice - Appropriateness of substantive charges - Delay - Improprieties of public officers.

Crimes Act 1914 (Cth), s86(7).
R v Hoar (1981) 148 CLR 32; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; R v Dowding [2000] VSC 439, referred to.
Aust Dig Criminal Law [96]

Criminal Law - Jurisdiction, practice and procedure - Adjournment, stay of proceedings or order restraining proceedings - Stay of proceedings - Abuse of process - Delay - Improprieties of public officers.

Jago v District Court of New South Wales (1989) 168 CLR 23, referred to.
Aust Dig Criminal Law [703]

REPRESENTATION:

Counsel:
Crown:  M Rozenes QC, K E Read, N Robinson, 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 144
Number of Paragraphs: 74

Serial No 144/2001
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 15)

REASONS FOR JUDGMENT BLOW J

18 December 2001

On 29 November 2001, I refused an application for the charge of conspiracy against the five accused to be dismissed or, alternatively, for the proceedings on the indictment to be permanently stayed. These are my reasons for refusing that application.

The application was for the charge to be dismissed pursuant to the Crimes Act 1914 (Cth), s86(7) on the basis that its dismissal was in the interests of justice, or alternatively for the proceedings on the indictment to be stayed permanently to prevent an abuse of process. The accused have been indicted on 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, s86A, by causing and permitting false returns ("SEF2 forms") to be submitted to AFMA as to orange roughy catches in 1992 and 1993. Although s86(7) was not inserted into the Crimes Act until 1995, it is a procedural provision and therefore applicable to the present case. It reads as follows:

"A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so."

Defence counsel submitted that the discretion to dismiss the charge pursuant to s86(7) should be exercised as a result of a combination of factors including (a) the availability of substantive charges, as distinct from a conspiracy charge; (b) delays in charging the accused and bringing them to trial, and the consequences of such delays; (c) the motives of Commonwealth authorities for laying the conspiracy charge; (d) the fact that Commonwealth authorities did not take any action in 1992 or 1993, either by way of laying charges or pursuing administrative remedies, which might have brought the alleged conspiracy to an end; (e) the conduct of AFMA in obtaining evidence illegally and otherwise resorting to unlawfulness to protect and maintain its regulatory regimes in relation to orange roughy quotas; and (f) the allegedly inappropriate exercise of the discretion to prosecute.

Counsel agreed that the evidence before me for the purposes of this application was to comprise the evidence of certain witnesses given before me on a Basha enquiry (see Basha v R (1989) 39 A Crim R 337 at 339), the oral and documentary evidence which was before me on a voir dire relating to evidentiary objections that commenced on 29 August 2001 (see R v Turner (No 14) [2001] TASSC 124), and certain further documentary exhibits tendered on the voir dire in relation to this application.

Origins and purpose of s86(7)

Before evaluating the competing arguments presented by counsel, it is appropriate to consider the history and purpose of s86(7). I note at the outset that there is no requirement for any sort of application before the power conferred by the subsection can be exercised, and that there is no provision imposing any onus of proof.

On a number of occasions prior to the enactment of s86(7), courts had criticised prosecuting authorities for instituting conspiracy charges when substantive charges were more appropriate. In R v Hoar (1981) 148 CLR 32 at 38, Gibbs CJ, Mason, Aickin and Brennan JJ said, "Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed." At 40, Murphy J agreed with the criticisms made in that case by the other members of the bench. Similar comments were made by the New South Wales Court of Criminal Appeal in R v Shepherd (1988) 94 FLR 55, by the New Zealand Court of Appeal in R v Humphries [1982] 1 NZLR 353, and by the English Court of Appeal in Jones v R (1974) 59 Cr App R 120 at 124.

In 1990 the "Gibbs Committee" recommended that "express power be given to any court to discharge a jury … when a charge of conspiracy is brought, to enable the presentment of an indictment … for the complete and substantive offence where the court is of the opinion that the interests of justice require that course": Review of Commonwealth Criminal Law, Interim Report, Principles of Criminal Responsibility and Other Matters, July 1990, 413. It was apparently as a result of that recommendation that s86(7) was introduced. When the Bill for the amendment was before the House of Representatives, an explanatory memorandum circulated by the relevant Minister explained in relation to the proposed subsection, "The most likely use of this provision will arise when the substantive offence could have been used, a criticism repeatedly voiced by the Courts (see, for example, Hoar (1981) 148 CLR 32)". Nothing was said as to other possible uses of the proposed subsection.

The Crimes Amendment Act 1995 did not just introduce s86(7). The whole of the old ss86 and 86A were repealed and replaced by a new s86. Under the repealed s86(1)(a), it was an indictable offence to conspire to commit an offence against any law of the Commonwealth but, under the new s86(1), it became an offence to conspire to commit an offence against a law of the Commonwealth only if the substantive offence was punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more. The new s86(9) introduced a requirement for the consent of the
Commonwealth Director of Public Prosecutions ("the DPP") before proceedings for an offence of conspiracy can be commenced. These amendments reflect an intention on the part of Parliament that conspiracy charges should not be laid too readily, and that they should be laid only for serious offences. In other situations it was the will of Parliament that the prosecuting authorities should either lay substantive charges or no charges at all. Although the accused have been charged with contravening the old s86A, and the non-procedural provisions of the new s86 are inapplicable, it is appropriate that I have regard to the will of Parliament when deciding whether to exercise the discretion conferred by s86(7).

As a general rule, decisions as to who is to be prosecuted and for what, and as to whether criminal proceedings should be continued or not, are within the province of the executive and are not susceptible of judicial review: Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 at 579; Maxwell v R (1996) 184 CLR 501 at 513 - 514, 534. Gaudron and Gummow JJ explained the reason for this in Maxwell at 514, as follows:

"The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what."

It is only in exceptional cases that a court can exercise its inherent power to stay proceedings so as to prevent an abuse of its process: Barton v R (1980) 147 CLR 75; Jago v District Court of New South Wales (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Walton v Gardner (1992) 177 CLR 378; R v McCready (1985) 20 A Crim R 32. Because of those well entrenched principles, I accept the submission made by Mr Rozenes QC to the effect that, in enacting s86(7), Parliament did not intend to confer on the judiciary a duty routinely to supervise the exercise of the prosecutorial discretion in the laying of conspiracy charges. For the purposes of this application I have assumed (without deciding either point) that Parliament intended the judiciary somewhat more readily to intervene in relation to prosecutorial decision-making in conspiracy cases, at least where substantive charges were available, and that Parliament intended s86(7) to be available in other situations not involving any abuse of process. It seems clear that the decision to confer a power of dismissal ¾ something more drastic than a power to grant a permanent stay ¾ was a deliberate one. However I consider that, if Parliament had intended courts to become routinely involved in the review of prosecutorial decision-making in conspiracy cases, it would have said so in very clear language.

Mr Abbott QC relied on the new s86(1) as the basis for a submission that Parliament intended conspiracy to be charged only in relation to inchoate crimes, and not where charges of substantive offences were available. I think that submission went too far. The new s86(1) not only limits charges of conspiring to commit an offence against the law of the Commonwealth to situations where the substantive offence is punishable by more than twelve months' imprisonment, or by a fine of 200 penalty units or more, but also provides that such a conspiracy "is punishable as if the offence to which the conspiracy relates had been committed". Plainly it was the intention of Parliament that conspiring to commit an offence could generally not be treated as a more serious offence than the substantive offence itself. (An exception was made by s86(2) in relation to conspiring to commit an offence contrary to the Crimes Act, s29D, which prohibits the defrauding of the Commonwealth or of a public authority under the Commonwealth.) However there is nothing in the new s86(1) to suggest that Parliament intended that section to be used only when a substantive offence had not been committed. There may, for example, be cases when proof that a substantive offence had been committed would be so difficult that a conspiracy charge would be more appropriate than a substantive charge. The use of the words "as if the offence to which the conspiracy relates had been committed" does not compel the conclusion that Parliament intended the subsection to apply only when no substantive offence had been committed. I think plainer language would have been used to express any such intention. I think the words in question were intended simply to prevent a heavier penalty being imposed for conspiracy than can be imposed for a substantive offence.

As far as I am aware, s86(7) has only been considered by a superior court previously in one case, namely R v Dowding [2000] VSC 439. In that case, at par20, Teague J observed that the subsection confers a true discretion which can be exercised judicially, and advanced a non-exhaustive list of considerations to which it might be appropriate to have regard when exercising that discretion. That list included:

"… whether a conspiracy count reflects the criminality involved more appropriately than substantive counts; … whether the complexity of the trial is likely to be increased, because of evidentiary difficulties or otherwise; whether adverse consequences as to sentencing might result; [and] whether the potential for injustice to the accused might arise for any other reason; …".

As Gibbs CJ, Mason, Aickin and Brennan JJ made clear in Hoar (at 38), the principle that conspiracy should not be charged when a substantive offence has been committed is not of universal application, but generally applies where "a sufficient and effective charge" of a substantive offence is available. When they referred to "a sufficient and effective charge", I think their Honours had in mind such factors as the adequacy of the available penalties for a substantive offence, the other consequences of conviction for a substantive offence, and any evidentiary or legal obstacles likely to be encountered in a prosecution for a substantive offence. Their Honours specifically referred to the prescribed penalties for substantive offences, and to the availability of forfeiture orders under the fisheries legislation relevant to that case. Further, they said the following at 38:

"In exceptional cases the element of concert may justify a more severe penalty for conspiracy than for the substantive offence which the conspirators commit (see Verrier v Director of Public Prosecutions [1967] 2 AC 195, at p 223) …".

I observe that that factor is not significant in relation to conspiracies occurring after the commencement of the new s86(1) because of its provisions as to penalties, subject to the exception under s86(2) relating to conspiracies to commit offences contrary to s29D.

Another matter that is sometimes significant is that a conspiracy charge will be the only appropriate charge if a conspiracy is abandoned or thwarted before any substantive offence is committed, but there is no suggestion that the conspiracy alleged in this case ended before substantive offences were committed.

The availability of substantive or alternative charges

In the light of the comments in Hoar, the appropriate course is to review the various other offences with which the accused could possibly have been charged. At the outset, it is important to note that fish swimming in the ocean are animals ferae naturae. They do not belong to the Commonwealth or anyone else. As no-one has property in them, no-one can be charged with stealing them. The sorts of offences that need to be reviewed are therefore concerned with such things as the defiance of legislative prohibitions on fishing, the defiance of quota restrictions, the making of false statements, and the keeping of false records. I need to examine the provisions of the Fisheries Act 1952 ("the 1952 Act"), the Fisheries Regulations (which were made under the 1952 Act), the Fisheries Management Act 1991 ("the 1991 Act"), the Fisheries Management Regulations (which were made under the 1991 Act), and the Crimes Act.

The 1952 Act and the Fisheries Regulations

The relevant provisions of the 1952 Act were all repealed with effect from 3 February 1992. It seems that the prosecuting authorities incorrectly believed that the relevant provisions continued in force until 31 December 1992, but I rejected an argument to that effect in R v Turner (No 4) [2001] TASSC 51 at pars39 - 49. It seems the incorrect beliefs of the prosecuting authorities came to an end only after I delivered that decision on 4 May 2001.

While the 1952 Act was in force, the Minister purported to determine a management plan under s7B thereof ("the 1991 management plan"). That management plan provided for quota restrictions on orange roughy catches. Licences were purportedly issued under the 1952 Act, s9(2). They contained conditions purporting to restrict catches of orange roughy in accordance with the 1991 management plan. The 1991 management plan and the licences were wholly void, and never of any effect: Coleman v Gray (1994) 55 FCR 412; R v Turner (No 14) (supra) at par17. The Full Court of the Federal Court of Australia held in Coleman v Gray that charges of contravening licence conditions, contrary to the 1952 Act, s13(1)(f) and (h), were unsustainable. The Minister had published a notice purporting to prohibit fishing otherwise than in accordance with the 1991 management plan, but the Full Court held that charges of doing acts prohibited by that notice, contrary to s13(1)(i), were similarly unsustainable. I think a prosecution for unlicensed fishing in contravention of s13(1)(b) would have been likely to fail on the basis that the defendants held honest and reasonable mistaken beliefs that they held valid licences authorising them to fish.

The most appropriate provision in the 1952 Act under which the accused could perhaps have been charged is s14(2)(ba), which provided as follows:

"A person who ¾
…
(ba) in a record, report, return or other document relating to fishing made, given or furnished, or purporting to be made, given or furnished, under this Act, the regulations or a plan of management, makes a statement or furnishes information that is, to the knowledge of the person, false or misleading in a material particular;

is guilty of an offence punishable, on conviction, by ¾
(c) if the person is a natural person ¾
a fine not exceeding $5,000 or imprisonment for a period not exceeding 2 years, or both;

…".

This prosecution relates to returns submitted during 1992 and 1993. Those submitted during 1992 all purported to be submitted pursuant to the 1952 Act. However charges under s14(2)(ba) could not properly have been laid in respect of returns submitted on or after 3 February 1992 because s14 was repealed with effect from that day. It appears from the particulars of overt acts delivered by the Crown in relation to the conspiracy charge that the Crown alleges that understatements of orange roughy catches were made in dozens of SEF2 forms in pursuance of the alleged conspiracy, but is relying on only two SEF2 forms that were submitted before the repeal of the 1952 Act, both of which are alleged to have related to the first trip by the vessel Belinda in 1992.

As a consequence of the invalidity of the 1991 management plan, provisions requiring the submission of returns contained in the Fisheries Regulations, namely regs15A and 18(3), were of no effect: R v Turner (No 14) (supra) at pars17 - 19. It is true that s14(2)(ba) could have been relied upon in respect of SEF2 forms submitted before its repeal because it applied to documents "purporting to be made, given or furnished" under the 1952 Act or the relevant regulations. However any s14(2)(ba) prosecution brought in respect of returns purportedly required by invalid instruments associated with the invalid management plan could very well have failed, either on the basis of a construction in bonam partem being adopted in respect of s14(2)(ba), or on the basis that a prosecution in such circumstances was so unfair as to amount to an abuse of process. See Coleman v Gray (supra) per Beaumont J at 422, 424. Even if such a prosecution succeeded, I expect a court imposing penalties would have taken into account the absence of a valid legislative obligation to submit the forms in which the false statements were allegedly made.

Charges under the Fisheries Regulations would have been inappropriate. The offences created by the regulations were concerned more with failures to submit forms, rather than false statements, and the regulations were not effective as a result of the invalidity of the 1991 management plan. Regulation 18(1) required the master of an Australian boat licensed under the 1952 Act, s9, to enter information as to the taking, sale or disposal of fish in a log-book in the appropriate form, in accordance with the requirements set out in it, on a daily basis. Regulation 18(3) required the master to furnish the folios of the log-book to "an officer, or to the department, in accordance with the requirements set out in the log-book". Contravening either subregulation amounted to an offence punishable by a maximum fine of $2,000. Regulation 15A(4) required a "receiver" who received "SEF species" to complete a return that contained the particulars specified in reg15A(8). Regulation 15A(6) required a receiver who was required to complete a return in any week ending at the end of a Sunday to give the department a return before the end of the following Tuesday. The contravention of either reg15A(4) or reg15A(6) amounted to an offence punishable by a maximum fine of $2,000. I accept that it was implicit in regs18(1) and 15A(4) that all returns were required to be completed accurately, and that the submission of an inaccurate return would have amounted to a contravention of reg18(3) or reg15A(6) if either had been applicable. However, s14(2)(ba) created a more serious offence, attracting more substantial penalties, for a person to furnish information with knowledge that it was false or misleading in a material particular, and was therefore a more appropriate charge when such conduct was alleged.

The 1991 Act and the Fisheries Management Regulations

Apparently because of a mistaken view that the Fisheries Legislation (Consequential Provisions) Act 1991, s6, preserved the operation of the 1952 Act throughout 1992, no attempt was made to impose any legislative obligation on anyone pursuant to the 1991 Act to submit returns as to orange roughy catches prior to 1993. Notices signed by the chairperson of AFMA purporting to impose such obligations with effect from 1 January 1993 were published in the Gazette on 22 December 1992, but they were nullities: R v Turner (No 6) [2001] TASSC 89 at pars18, 21 - 22; R v Turner (No 14) (supra) at par25. Conditions purporting to require the lodgement of such forms were contained in par4.6 of each relevant fishing permit issued pursuant to the 1991 Act, s32, for the year 1993, but par4.6 of each permit was so unreasonable as to be void: R v Turner (No 6) (supra) at par28.

Under the 1991 Act, s95(1)(f), it is an offence for a person acting on behalf of the holder of a fishing concession, when it is in force, to contravene a condition of that fishing concession. The maximum penalty is a fine of $10,000: s95(5). A fishing permit issued under s32 falls within the definition of "fishing concession" in s4(1). Had the reporting conditions in par4.6 of each relevant permit not been void, charges under s95(1)(f) could have been laid in respect of any false returns submitted in 1993. The blame for the invalidity of the relevant permit condition, par4.6, belongs to the AFMA officer or officers responsible for the drafting of the permits. It was submitted on behalf of the accused that it was an abuse of process for the accused to be charged with conspiracy when the unavailability of substantive charges resulted from unlawful conduct on the part of AFMA. It may well be that it was not until long after the conspiracy charge had been laid that anyone involved in the choice of charges foresaw any possibility that par4.6 might be held to be void for unreasonableness. But given that par4.6 is void for unreasonableness, I think that fact should be taken into account in deciding whether the choice of a conspiracy charge was so inappropriate that it is in the interests of justice for it now to be dismissed.

Of course, charges under s95(1)(f) could also have been laid in respect of the catching of any fish in excess of quota restrictions imposed by the relevant permits in 1993. However the Crown might have had difficulty proving any such contravention. Mr Abbott QC submitted that the Crown case is such that the quotas in respect of orange roughy allocated to the relevant boats for 1993 are not alleged to have been exceeded. In support of that submission, a schedule of calculations was provided to the Court showing the orange roughy quotas allocated to the relevant vessels for 1993, the quantities of catches as reported in SEF2 forms received by AFMA, and adjustments for understatements alleged by the Crown. The quota figures come from documents generated from an AFMA database and tendered on the voir dire, as do the figures as to catch quantities reported in SEF2 forms. The figures said to represent the true catch, as alleged by the Crown, on each relevant voyage have been used to calculate the extent to which the catch on each relevant voyage was understated. According to data extracted from AFMA's database, the quotas allocated to the relevant vessels in 1993 would have exceeded their catches if the SEF2 forms had been accurate ¾ by 15,402 Kg in the Eastern Zone of the "South East Fishery", by 60,457 Kg in its Western Zone, and by 581,314 Kg in its Southern Zone. According to the schedule of calculations, if the figures in the SEF2 forms had been understated to the extent said to have been alleged by the Crown, the quotas allocated would still have exceeded the catches ¾ by 2,000 Kg in the Eastern Zone, 35,028 Kg in the Western Zone, and 430,497.6 Kg in the Southern Zone. The Crown does not concede the accuracy of these three figures, but had not attempted to establish on the voir dire the extent of the understatement of orange roughy catches. For the purposes of considering the appropriateness of charges under s95(1)(f), I saw no need to check the accuracy of the calculations that I was provided with, nor to consider the validity of their underlying methodology. For the purpose of ruling on the present application, I accepted that there was a real possibility that, as submitted by Mr Abbott QC, the Crown would be unable to prove that the quotas allocated to the relevant vessels in 1993 were in fact exceeded in respect of any of the Eastern, Western and Southern Zones of the "South East Fishery". That is a factor that weighs in favour of the laying of a conspiracy charge, and against the laying of substantive charges under s95(1)(f).

However charges could have been laid in respect of false statements in the returns submitted to AFMA, not only in relation to the returns submitted in 1993 in purported pursuance of the 1991 Act, but also in relation to the returns submitted between 3 February 1992 and 31 December 1992 in purported pursuance of the repealed provisions of the 1952 Act. This was because the 1991 Act, s107, which came into force on 3 February 1992, provides as follows:

"A person must not knowingly present a document, make a statement or give a return or information, that is false or misleading in a material particular, to AFMA or another person performing duties under this Act or the regulations.
Penalty: Imprisonment for 12 months."

This section does not repeat the requirement of the repealed s14(2)(ba) that the false or misleading information be furnished pursuant, or purportedly pursuant, to a legislative obligation. Even if, as was falsely believed, the repealed provisions of the 1952 Act had remained in force until the end of 1992, the provision of false or misleading information to AFMA, or a person performing duties under the 1991 Act or its regulations, would have constituted an offence contrary to s107 at any time from 3 February 1992 onwards.

However, it would have been necessary to lay a separate charge in respect of each false SEF2 form after first identifying the evidence, if any, linking each of the accused with that form, and determining which of the accused should be charged in relation to that form. At trial, it would have been necessary to address the jury separately in relation to each form, and the evidence linking each form with each of the accused charged in relation to it. There might also have been technical arguments as to whether the sending of forms to particular recipients or destinations fell within the scope of s107.

Once again, I expect any court imposing a penalty under s107 might have taken into account in favour of the defendants the fact that there was no valid legislative obligation to submit SEF2 forms to AFMA.

Crimes Act 1914

The Crimes Act, s29D, provides:

"A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence:
Penalty: 1,000 penalty units or imprisonment for 10 years, or both."

In this case the Crown alleges that the crime of conspiring to defraud the Commonwealth or a public authority under the Commonwealth was constituted by the five accused dishonestly agreeing to cause and permit false returns to be submitted to AFMA, knowing that public officers were likely to be deflected from the performance of their public duties as a result. I reviewed the authorities in relation to this sort of fraud, which does not necessarily involve the imperilling of the Commonwealth's economic interests, in R v Turner (No 4) (supra). It is one thing to prove knowledge that public officers were likely to be deflected from their public duties, and it is quite another thing to prove actual deflection. There is ample evidence before me on the voir dire to suggest that AFMA and its officers believed that many people submitting SEF2 forms in 1992 and 1993 were deliberately understating catches, and that little or no reliance was placed on the contents of such forms for the purposes of the management of the relevant fishery.

The Crown could have considered relying on the Crimes Act, s7, which makes it an offence to attempt to commit any offence against any law of the Commonwealth. The accused could perhaps have been charged with attempting to commit the offence of defrauding the Commonwealth, or a public authority under the Commonwealth, contrary to ss7 and 29D. Once again, it would have been necessary to lay a separate charge in respect of each false SEF2 form after first identifying the evidence, if any, linking each of the accused with that form, and determining which of the accused should be charged in relation to that form, and at trial it would have been necessary to address the jury separately in relation to each form, and the evidence linking each form with each of the accused charged in relation to it.

Four of the five accused ¾ those other than Mr Turner ¾ were charged with offences contrary to the Crimes Act, s29B. In total there were 24 such charges against Mr Coulston, 58 such charges against Mr Jansen, 84 such charges against Mr Lee, and 33 such charges against Mr Tedesco. They were committed for trial on nearly all of them, but were indicted only on the conspiracy charge. Section 29B reads as follows:

"Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence.
Penalty: Imprisonment for 2 years."

Some, but not all, of the charges against Messrs Coulston, Jansen and Lee alleged endeavouring to impose, as distinct from imposing. All of those against Mr Tedesco alleged that he imposed upon AFMA, as distinct from endeavouring to impose upon it.

To obtain a conviction on a charge under s29B, the Crown need only prove that the defendant imposed, or endeavoured to impose, upon an authority under the Commonwealth by a representation known to be untrue and made with a view to obtaining a benefit, and that the authority was deceived or misled. It is not necessary to show that the authority acted in reliance on the representation, nor that the defendant obtained any benefit or advantage, nor that the authority or the Commonwealth suffered a detriment, nor that the accused got the better of the authority or the Commonwealth. If actual deception or misleading cannot be established, the defendant could still be charged with endeavouring to impose upon the authority. These matters were all decided by the Full Court of the Federal Court of Australia in a case concerning the submission of false SEF2 forms: Guillot v Hender (1999) 86 FCR 294.

Prior to the 1995 amendments, s86(1)(a) provided that a person who conspired with another person to commit an offence against a law of the Commonwealth was guilty of an indictable offence, and any offence contrary to s86(1) was punishable by imprisonment for three years. Instead of charging the accused with conspiracy to defraud contrary to s86A, they could have been charged under s86(1)(a) with conspiring to commit offences contrary to the 1991 Act, s107, and/or the Crimes Act, ss29B and/or 29D. Given that the main reason for the introduction of s86(7) was apparently the perceived need for a mechanism to prevent conspiracy charges from proceeding when substantive offences should have been charged, I cannot think of any situation in which it would be appropriate for one sort of conspiracy charge to be dismissed under s86(7) on the ground that a different sort of conspiracy charge should have been laid.

Mr Abbott QC submitted that it was an abuse of the processes of the Court to bring a charge of conspiracy to defraud where some more specific conspiracy charge was available in relation to the conduct alleged by the Crown. In support of that submission, he relied on a passage in the Report of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General ("MCCOC") published in May 1997 in relation to conspiracy to defraud. At 17, commenting on recommendations made in another country, the Committee said the following:

"Wild game and things growing in the wild have not been included in theft. The Law Commission concluded that they should not be part of the law of theft and referred to recommendations that conspiracy to defraud should not cover them either. MCCOC agrees with these views. However the Law Commission's Report concludes that pending its review of dishonesty offences, conspiracy to defraud should continue to cover 'a concerted dishonest appropriation of such property'. MCCOC does not believe these things should be capable of forming the subject matter of conspiracy to defraud. They may need to be subject to conservation legislation or similar protection but they should not be the subject of conspiracy to defraud. Although a defendant may gain for the purposes of s17.4, where the game is wild, it is hard to see how taking it could be dishonest. Where the wild game was protected by, say a conservation statute, the appropriate charge would be of conspiracy to breach the relevant conservation statute."

Mr Abbott QC submitted that Parliament had accepted this recommendation, and referred me to the Criminal Code (Cth), s130.1. However that section contains a series of definitions, including a definition of "property" that includes wild creatures, contrary to the views of the MCCOC. Further, it seems that the MCCOC's comments in relation to conspiracies to defraud were concerned only with frauds involving the imperilling of economic interests, as distinct from frauds involving a likelihood of deflection of public officers from the performance of their public duties. Thus the MCCOC was essentially concerned with the question whether wild creatures ought to be treated as property for the purposes of the law as to conspiracies to defraud.

Appropriateness of the conspiracy charge

The appropriateness of the conspiracy charge is something that needs to be considered against the background of all the legislative provisions that I have referred to. However it is very important to keep in mind the reasons that courts have occasionally expressed distaste for conspiracy charges. Much that has been said relates to the rule of evidence whereby, if there is other reasonable evidence that an accused person was a participant in a conspiracy, evidence of things done or said in furtherance of the conspiracy in that person's absence by an alleged co-conspirator will be admissible against that person, as evidence of his participation in the conspiracy. That rule was discussed and explained by the High Court in Tripodi v R (1961) 104 CLR 1 and Ahern v R (1988) 165 CLR 87. When a conspiracy charge and other charges are joined in a single indictment, and all such charges proceed to trial, the trial judge needs to explain to the jury that evidence admissible under the above rule on the conspiracy charge is not admissible against the same accused in relation to the substantive charges. As a result, orders severing indictments or staying conspiracy charges are often made in such situations. This is not such a situation. The accused have not been indicted on any of the s29B charges, and I need not concern myself as to whether the Crown might or should seek to proceed on any of those charges at a later date. The most that can be said in relation to the rule of evidence concerning co-conspirators is that, as a result of the Crown having proceeded with a conspiracy charge rather than substantive charges, evidence that would otherwise not have been admissible against one or more individuals might now be admissible against that or those individuals.

In Hoar, the Crown intended to proceed with substantive charges after obtaining a conviction on a conspiracy charge. The High Court was very critical of that proposed course because of the risk of double jeopardy, ie, double punishment. No such problem need arise here.

A conspiracy charge is often inappropriate where the Crown alleges that a conspiracy to commit a single substantive offence has been brought to fruition. However in Shepherd (supra), which concerned a drug trafficking ring, Street CJ, with whom Lee and Campbell JJ agreed, said the following at 61:

"Where the Crown case involves proof of a ring of criminality, whether it be in drug importing or trafficking, whether it be in the stealing and recycling of particular assets such as cars, whether it be in social service frauds, or whether it be in some other activity of a criminal nature in which there can be seen to have been established an ongoing organisational framework for general activity, then I see no necessary obligation on the Crown to select particular substantive offences and to proceed to trial on an indictment charging those, rather than one which accords with the reality of the situation, namely, a charge of a conspiracy to set up and operate the organisation."

The Crown case can be summarised as follows. Licences for the year 1992 were purportedly granted in respect of the relevant vessels to fishing companies named Victrawl Pty Ltd ("Victrawl") and Rigil Kent Fisheries Pty Ltd ("Rigil Kent"). Permits under the 1991 Act, s32, were granted to the same companies for the year 1993. The accused Turner was employed by Victrawl at Port Lincoln in South Australia as its business manager. The accused Jansen was originally the shore manager for Victrawl in Hobart. He was replaced by the accused Tedesco at an early stage in the conspiracy. Victrawl owned two vessels ¾ the Lorna Dorn and the Roza-S. It managed and operated three other vessels ¾the Belinda, the Monika and the Teena-B. All five vessels caught orange roughy in the "South East Fishery". The shore managers, Mr Jansen and Mr Tedesco, oversaw the unloading of the vessels, including the weighing of the catch and the false recording of the catch details. The accused Coulston was the master of the Lorna Dorn. He entered into special arrangements for him and his crew to be paid on the basis of the true catch, rather than the under-recorded catch. The accused Lee was the managing director of a company named Trident Seafoods Pty Ltd ("Trident") which processed orange roughy landed from the relevant boats in Tasmania. Mr Jansen completed false SEF2 forms that were submitted to AFMA between 6 January 1992 and 18 March 1993. Mr Tedesco completed false SEF2 forms that were submitted to AFMA between 26 March 1993 and 13 December 1993. Mr Coulston signed false SEF2 forms that were submitted to AFMA in respect of the catches of the vessel Lorna Dorn between 29 April 1992 and 17 February 1993. Mr Lee directed employees of his company to submit false SEF2 forms to AFMA between 23 January 1992 and 13 December 1993. Mr Lee together with each of Mr Jansen, Mr Tedesco and Mr Coulston caused the figures as to orange roughy catches in SEF2 forms lodged by Trident to match the figures in SEF2 forms lodged by or on behalf of the masters of the five vessels and by Victrawl and Rigil Kent as permit holders. Mr Turner had in his possession documentation as to codes. That documentation allowed him to calculate the actual quantity of fish caught by reference to false catch figures. He calculated the pays for the crews based on codes indicating the percentage by which the catch had been understated. He acted in furtherance of the conspiracy by creating, or causing to be created, and causing to be delivered to crew members of the vessels, master crew share sheets which intentionally understated catches. It is not alleged that he participated directly in the creation or submission of SEF2 forms containing false information.

If the facts are as the Crown alleges them to be, the accused were participants in a single conspiracy that began before the 1991 Act commenced and before AFMA existed, and endured for approximately two years, with some comings and goings of participants. If entering into and sustaining such a conspiracy was contrary to the criminal law, then a single conspiracy charge accords with the reality of the situation in the way that a multiplicity of charges of substantive offences would not. A single charge of conspiring to defraud contrary to s86A avoids the complexity that would have arisen if conspiring to commit offences had been alleged in reliance upon the repealed s86(1)(a), namely that it would then have been necessary to have alleged a conspiracy to commit offences contrary to the 1952 Act, s14(2)(ba), whilst that Act remained in force, and to commit offences contrary to the 1991 Act, s107, thereafter. A single s86A charge also has the advantage of comparative simplicity for a jury, who would not need to consider in great detail the evidence as to each and every SEF2 form and the activities, if any, of each accused in relation to that form. As it might not be alleged that the accused Turner was directly involved in the completion or lodgement of any SEF2 forms, a charge of conspiracy brought on the basis that he did acts in furtherance of the alleged conspiracy accords with the apparent allegations as to his criminality and does not involve the difficulty of linking his conduct with specific SEF2 forms. Although the rule of evidence relating to co-conspirators might operate to the disadvantage of one or more of the accused in this case, that will often be the case. That rule, after all, is an established part of our criminal law, and is not inherently unfair. Defence counsel have not identified any specific piece of evidence in respect of which it has been argued that this rule might operate unfairly. Having regard to all these factors, I think the decision to indict the accused on a single count of conspiracy to defraud contrary to s86A was not inappropriate at all, despite the availability of substantive charges under the 1991 Act, s107, and the Crimes Act, s29B and ss7 and 29D, and would still have been quite appropriate even if the legislative and administrative blunders that I catalogued in R v Turner (No 14) (supra) had not resulted in substantive charges being unavailable in respect of quota restrictions in 1992 and in respect of recording and reporting requirements both in 1992 and 1993. I therefore need not consider how inappropriate a charge of conspiracy would need to be for it to be in the interests of justice for it to be dismissed under s86(7).

There are however a number of factors concerning the unavailability or perceived unavailability of substantive charges that tend to weigh in favour of the accused in relation to the exercise of the discretion conferred by s86(7). Those factors are as follows:

(a)The reason that substantive charges under the 1952 Act, s14(2)(ba) were unavailable in respect of SEF2 forms completed and lodged from 3 February 1992 to 31 December 1992 is that the Minister adopted unfair formulae when he determined the 1991 management plan. He no doubt did so on the advice of officers of the Australian Fisheries Service, all or most of whom went on to become officers of AFMA.
(b)It was because of the adoption of unfair formulae by the Minister when he determined the 1991 management plan that no substantive offences were available as to the exceeding of quotas in 1992.
(c)There may well have been an erroneous perception that charges under the 1991 Act, s107, were not available in respect of 1992 SEF2 forms, when in fact the section applied as from 3 February 1992. I assumed for the purposes of my ruling that there was such a false perception.
(d)The unavailability of substantive charges in relation to the recording and reporting of catches in 1993 resulted from blunders on the part of those responsible for drafting regulations and determinations, and unreasonableness on the part of those responsible for drafting permit conditions.

But for these factors, there is perhaps some chance that the accused would not have been charged with conspiracy to defraud. However that possibility, by itself, does not lead to the conclusion that it would be in the interests of justice of dismiss the s86A charge. It is a factor which weighs in favour of dismissing the charge. It is necessary to consider whether there are other factors which, taken in combination with that one, would lead to such a conclusion.

Mr Melick SC submitted that his client, Mr Lee, was disadvantaged more than the other accused by the bringing of a conspiracy charge, rather than substantive charges. The Crown alleges that Mr Lee, as managing director of Trident, a receiver, directed his company's employees to submit false SEF2 forms to AFMA, and caused the figures in those forms to match the figures in the forms lodged by or on behalf of the relevant masters and permit holders. However I decided some weeks ago to exclude from the evidence the forms submitted on behalf of Trident for the whole of 1993, as well as all forms submitted by Trident and others between 10 September 1992 and 31 December 1992. Had substantive charges been laid against Mr Lee in respect of misleading forms completed and/or submitted on behalf of Trident, many of them would have been unsustainable if the same evidence had been excluded on public policy grounds. However the particulars of overt acts delivered by the Crown identify some 33 SEF2 forms dated prior to 10 September 1992 which Mr Lee is alleged to have directed others to complete. If he is convicted, I expect it will be forcefully submitted that, had AFMA paid proper regard to the rule of law, Trident would not have been compelled to submit any relevant SEF2 forms after 9 September 1992, and he would in all probability have ceased his involvement in any conspiracy as from that time. However the extent of his alleged involvement prior to that time is such that I do not think the factors weighing in favour of dismissing the charge should be given greater weight in his case than in relation to the other accused.

Delay, inactivity, and suggestions of improper motives

The accused are facing a trial by a jury, to be empanelled in 2002, in respect of events said to have occurred in 1992 and 1993. As far as I know, they were not responsible for any significant delay in the institution of proceedings. Some "holding charges" were apparently laid against the accused Jansen in 1998, but I do not know what those charges were, nor why they were laid. The charge under s86A and the 199 imposition charges under s29B were laid by a complaint dated 18 March 1999. There has been no significant delay since then on the part of the Crown, but the same cannot be said in relation to some of the years prior to the laying of that complaint.

The Australian Federal Police ("AFP") decided to undertake a surveillance operation in relation to orange roughy catches at the request of AFMA in 1992. That operation took place in Tasmania from 28 July 1992 until 31 August 1992. It was suspected that licensees were taking orange roughy in excess of the quotas purportedly allocated under the 1991 management plan, and that catches were being understated in SEF2 forms. However the investigation was interrupted as a result of two court decisions concerning the 1991 management plan. On 28 July 1992, O'Loughlin J held that the quota allocation formulae in that plan were void: Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 363. Burchett J also held that in a case in September 1992: La Macchia v Crean (1992) 110 ALR 201. The AFP therefore did not proceed with the execution of search warrants or the interviewing of witnesses or suspects at that stage. Instead, the surveillance operation was, in effect, repeated in 1993 after the new regime involving s32 fishing permits had been introduced. In December 1993, officers of the AFP and the Tasmania Police sought and obtained a series of search warrants in respect of various premises, including premises occupied by Trident and Victrawl in Tasmania, and premises occupied or used by Victrawl and Rigil Kent at Port Lincoln. Documents were seized pursuant to those warrants. After the seized documents had been analysed, it was decided to obtain and execute a second series of search warrants. This was done in June 1994. The premises of Trident and Victrawl in Tasmania were searched again. Police officers also searched the premises of some fish unloaders refreshingly named "Groucho's Fish Unloaders" and "Smiffy's Fish Flingers". The Crown alleges that the unloaders' documents are good evidence of the true quantities of orange roughy caught on the relevant voyages. As a result of the execution of the December 1993 and June 1994 warrants, the AFP had a very substantial quantity of documentary evidence that apparently suggested the understatement of orange roughy catches from over 90 voyages by the relevant vessels. It was necessary for someone to prepare a brief containing the available evidence so that a representative of the DPP could consider what charge or charges should be laid. That task was given to the AFP. Within the AFP, that task was allocated to Federal Agent McKay in the AFP's Hobart office. On 12 August 1994, he delivered a preliminary brief in relation to six sample voyages to a solicitor in the Hobart office of the Australian Government Solicitor ("AGS") who was acting as the agent of the DPP. During 1995, Mr McKay spent considerable time interviewing witnesses and suspects. On 21 October 1995, he visited the solicitor and handed over a further brief of evidence. Although some months of additional work needed to be done by him at that point to complete the briefing of the solicitor, he was the only AFP officer allocated to deal with this investigation, and he was required to give priority to other matters to such an extent that he made practically no progress for some two years after seeing the solicitor in October 1995. He was apparently expecting some sort of guidance or assistance from the solicitor, but did little or nothing about his expectation of such guidance or assistance. In late 1997, the solicitor embarked upon a campaign to convince the AFP to provide more resources to the investigation. Mr McKay was transferred away from Hobart, apparently for reasons unrelated to this case, and replaced by a Federal Agent Driessen. She had search warrants issued and executed in Launceston and New Zealand, and completed the final brief which was delivered to the DPP's office in or about December 1998. I think it is fair to say that everything that was done by the AFP between June 1994 and December 1998 should have been done within something like one year, rather than 4½ years.

It was submitted on behalf of the accused that the delay in the laying of charges was associated with the pursuit of improper objectives by AFMA and the DPP. During June 1997, Victrawl applied to AFMA for the transfer of all of its fishing concessions, on the basis that it intended to go into liquidation. It was then a proposed defendant. If it had divested itself of assets, the remedies provided by the Proceeds of Crime Act 1987 (Cth) might have become unavailable, and seeking any reparation order under the Crimes Act, s21B, might have been pointless. The solicitor acting on behalf of the DPP pointed this out to AFMA in a letter dated 23 June 1997.

An AFMA internal minute dated 20 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 offences. It appears that, as a result, the proposed transfers did not proceed. It was decided that the solicitor 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.

A meeting was held on 4 March 1998 to discuss (inter alia) the narrowing of the parameters of the investigation. That meeting was attended by Mr Anderson of AFMA, the solicitor, and four AFP officers. It was agreed that the parameters of the investigation would not be reduced. Mr Anderson 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 penalties sought as AGS will be pursuing imprisonment". Mr Anderson 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.

There is no suggestion that any of the accused are, or have ever been, directors or general managers of Victrawl, Rigil Kent, or any associated or related company. Although I did not receive evidence that none of them have held any such office, I have assumed that to be the case for the purpose of this application. The proposed transfers by Victrawl and associated companies have still not proceeded. As recently as February 2000, an AFMA officer wrote to Victrawl's solicitor advising that "AFMA cannot effect the transfer of current holdings until the matters before the court in Hobart are resolved." I do not understand why this prosecution should warrant the deferring of a decision on transfers proposed by companies within which none of the accused hold, or have held, high office. However there may well be a legitimate explanation for AFMA taking such a course, and it by no means follows that the DPP has been influenced by an improper motive in bringing and continuing this prosecution.

In the context of an application to strike out parts of a witness notice issued under the Criminal Procedure (Attendance of Witnesses) Act 1996, I have already rejected a submission that it was improper for the DPP, his officers or agents, to take into account, when deciding whom to prosecute, the likelihood and nature of any reparation orders, confiscation orders, and so forth that might be made if the prosecution was successful: R v Turner (No 10) [2001] TASSC 100. 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. If the decision whether to prosecute was influenced by a desire to expose, through the trial of these five accused, evidence that might warrant AFMA cancelling a fishing concession of Victrawl or some company connected with Victrawl, then that could well be improper. If that was the only reason for instituting or continuing the prosecution, there might be an abuse of process. It may be that AFMA is monitoring this prosecution to see what it reveals about Victrawl and companies connected with Victrawl. But there is no direct evidence that this prosecution has been instituted or continued wholly or partly as a result of any improper motive associated with the proposed transfers, nor does the evidence provide any rational basis for me to draw an inference to that effect.

I do not think I should take into account any impropriety on the part of AFMA in refusing to process transfers or transfer applications to which none of the accused are parties. AFMA's decisions and conduct in relation to transfer applications can be reviewed by the Administrative Appeals Tribunal under the 1991 Act, s165(7), and by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977. Because of the avenues available for independent review of such decisions, and the absence of any evidence that any review of either type has been sought, I do not think any impropriety on the part of AFMA as to the transfers (and there may have been no such impropriety) should be given any significant weight in relation to the s86(7) application.

Although consideration of the possible confiscation or reparation orders, and consideration of the possible narrowing of the parameters of the investigation, might have contributed to the delay between June 1994 and December 1998, I accept that it was appropriate to consider those matters, and I have no reason to think that the consideration of those matters proceeded so slowly as to make any significant difference to the delay in the laying of charges.

There is no evidence that the institution of proceedings against the accused was delayed as a result of thought being given to the charging of Victrawl, and a decision being made not to charge that company. Although there is evidence that officers of the AFP and the DPP involved in the preparation of this case were interested in any lessons to be learned from other prosecutions concerning the quota regimes for the "South East Fishery" in 1992 and 1993, the evidence does not establish that the institution of proceedings against these accused was delayed as a result.

It is evident however that the accused have been disadvantaged, or potentially disadvantaged, by the delays that I have referred to in the following respects:

(a)Had it not been necessary for the surveillance operation of 1992 to be, in effect, repeated in 1993, the accused would in all probability have realised about one year sooner than they did that their activities were being investigated and, if they were involved in a conspiracy as alleged, would in all probability have terminated that conspiracy at or about the end of 1992.
(b)The memories of witnesses would no doubt have been more complete and more accurate if this charge had been laid a few years earlier than it was.
(c)Mr Anderson of AFMA is now suffering from leukaemia. He was well enough to give evidence at the committal last year, but not well enough to give evidence on the voir dire this year. He will almost certainly be too ill to give evidence on the trial next year. He does not have long to live. The evidence he could have given relates to the Crown's contention that the deflection of public officers from the performance of their public duties was a likely consequence of the submission of SEF2 forms understating orange roughy catches. Under the Evidence Act 1910, s134(a), I will have a discretion to allow Mr Anderson's depositions from the committal proceedings to be produced and given in evidence on the trial if it is proved that he is so ill as not to be able to travel, or dead. However it is extremely likely that defence counsel might have wanted to ask him very different questions from those asked at committal. I think there has been a shift in focus in relation to issues concerning public duties and likely deflections therefrom as a result of a number of applications that were made for particulars following the filing of the indictment. However I do not think the accused need be significantly prejudiced by Mr Anderson's unavailability since other AFMA officers, including those to whom he reported, are still available.

Jago v District Court of New South Wales (supra) concerned an application for a permanent stay of proceedings following a substantial delay in bringing a matter to trial. The appellant was charged with fraudulently converting cheques between April 1976 and January 1979. His trial was listed for February 1987. If the trial had proceeded in that month, it would have concerned events said to have occurred between 8 and 11 years previously. The jury on this trial next year will receive evidence as to events said to have occurred between about 8 and 10 years previously. Although the delay in Jago was unreasonable, and there was a likelihood of witnesses' memories being adversely affected, the High Court unanimously dismissed the appeal on the basis that the rejection of the application for a permanent stay at first instance had involved no error. The principles to be applied when an application for a permanent stay is sought on the basis of delay were discussed in the judgments.

At 34, Mason CJ said the following:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute' …".

At 58, Deane J said the following:

"The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process."

At 71 - 72, Toohey J said the following:

"… where an accused has suffered some prejudice in his defence by reason of delay in bringing his case to trial … it will often be possible to cure that prejudice by evidentiary rulings and by directions to the jury regarding the way they should approach the evidence adduced. But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation. Uncommon as that situation may be, it cannot be excluded."

At 78, Gaudron J said the following:

"… a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay."

In my view the adverse effect of the delays in this case on witnesses' memories and the unavailability of Mr Anderson at the trial would not, in combination, place the accused at such a disadvantage that the continuation of these proceedings would bring the administration of justice into disrepute. This is therefore not a case in which it would be proper to grant a permanent stay in accordance with common law principles on the basis of prosecutorial delays alone. However those matters, and the consequences of the delay resulting from the repetition of the surveillance phase of the AFP investigation, are no doubt factors that should be taken into account in determining whether the charge should be dismissed pursuant to s86(7).

The conduct of AFMA and its officers

In R v Turner (No 14) (supra) I made findings as to the conduct of AFMA and its officers as a result of a submission that, pursuant to the Court's discretions in relation to unfairness and illegally or improperly obtained evidence, I should exclude from the evidence all SEF1 and SEF2 forms submitted to AFMA and all documents seized pursuant to the search warrants that I have referred to. I decided to exclude all SEF1 and SEF2 forms relating to fishing activities between 10 September 1992 and 31 December 1992 since AFMA compelled the submission of those forms during that period when it knew that, if O'Loughlin J had been correct in his decision in Austral Fisheries (supra), there was no legal power to compel the submission of such forms. I also decided to exclude the SEF2 forms submitted by receivers in 1993, since AFMA compelled receivers to submit those forms in that year knowing that it had no legal right to do so. I decided not to exclude the other documents that had been objected to, despite findings that AFMA had had no legal right to compel the submission of SEF1 or SEF2 forms by anyone in 1992 or 1993; that AFMA ought to have recognised in late 1993 that there was no valid legislative requirement for the completion or submission of SEF1 or SEF2 forms by fishing permit holders; that AFMA officers had colluded in unlawful routine inspections of receivers by Tasmania Police officers; that AFMA officers had failed to reveal to AFP officers that receivers were not obliged to complete or submit SEF2 forms in 1993; that a solicitor from Eden had been misled as to the existence of a legislative requirement for receivers to lodge SEF2 forms in 1993; that a senior officer of AFMA had failed to inform its board that the SEF2 forms that receivers were completing and submitting in 1993 had baseless threats of prosecution printed on them; that someone from AFMA had provided the AFP with subtly changed wording for inclusion in warrant informations falsely suggesting that receivers were completing SEF2 forms as a result of some sort of request; that a plea bargain was improperly approved in December 1993, as a result of which convictions were obtained on charges that were unsustainable; that the publication of new log-books in late 1993 was improperly delayed until after pleas were entered in that case; and that those of the search warrants that were purportedly issued pursuant to the 1952 Act were invalid. The findings that I made as to the management of the legislative and administrative arrangements concerning the "South East Fishery" indicated a pattern of carelessness and ineptitude, and a disregard for the rule of law.

Quite apart from s86(7), the common law provides a very appropriate remedy in relation to evidence that has been unfairly, illegally or improperly obtained. Such evidence can be excluded, and relevant circumstances concerning law enforcement can be taken into account in the exercise of the exclusionary discretions. I exercised the illegality discretion, and excluded two significant sections of the evidence that the Crown wanted to rely upon. I think the terms of s86(7) are so wide and general that I must take into account in favour of the accused all the matters that I took into account in their favour when deciding how to exercise the discretions to exclude evidence. However, in deciding what weight to give to those matters, I think it is very significant that I have already relied on them in deciding to exclude a substantial quantity of very cogent evidence, and not other evidence.

The seriousness of the charge

The gravamen of the charge is that the alleged unlawful conspiracy was likely to result in the deflection of public officers from the performance of their public duties in relation to the management of the relevant fishery. One of AFMA's statutory objectives under the 1991 Act, s3(1)(b), is 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. As a result, AFMA had a duty to try to ensure that orange roughy stocks remained at a sustainable or reasonable level. Conduct which had the effect of deflecting public officers from the discharge of their duties in relation to that objective could make this a serious example of the crime charged, if the Crown proves its case.

The maximum penalty for a contravention of s86A is 20 years' imprisonment. The Crown alleges that the conspiracy charged continued for about two years. As I understand it, it is alleged that the accused conspired to understate orange roughy catches over that period by hundreds of thousands of tonnes. Even if the 1993 quotas were not exceeded, the understatement of catches could have resulted in consequences other than the exceeding of quotas. I have evidence that the administrative arrangements for 1993 enabled unused quota allocations to be transferred to other permit holders, or to be carried forward to the following year. Unused quota allocations were thus very valuable legal rights. The gross understatement of orange roughy catches, if any, could not only enable a permit holder to exceed quota restrictions without easy detection, but could alternatively enable a permit holder to procure quota transfers and/or allocations of quota for 1994 when, if accurate SEF2 forms had been submitted to AFMA, such transfers would not have been permitted, and such allocations would not have been available.

It is true that, insofar as they were administering a wholly invalid quota scheme in 1992, AFMA officers were not discharging any public duty. However all the data submitted in SEF2 forms in 1992 was relevant to future planning for the relevant fishery, and the submission of accurate forms might have resulted in appropriate steps being taken to prevent over-fishing, at least in 1993. It is true that the evidence establishes that SEF1 and SEF2 forms received from masters, permit holders, or their representatives, were apparently ignored for statistical purposes, and that the corresponding SEF2 forms from receivers were used instead, except when no forms from receivers were received by AFMA. However that factor is not a significant one if, as alleged by the Crown, the SEF2 forms submitted on behalf of Trident, a receiver, contained false statements of orange roughy catches in furtherance of the alleged conspiracy. It is true that the very officers whose possible deflection from duty is the subject of the charge were themselves acting unlawfully in the respects I have referred to, and in some cases were showing a disturbing disregard for the rule of law. However, if the crime charged was in fact committed, its victims were not the public officers whose duties the charge relates to, but the people of Australia in general, and honest participants in the fishing industry in particular. They had a very important interest in the proper conservation and management of orange roughy stocks in the waters over which Australia exercises sovereignty.

It is true that, if the crime charged was committed, the alleged conspiracy arose out of a situation that should never have arisen and was not of the accused's making. Unreasonable formulae had been relied upon as the basis for the determination of a management plan by the Minister. Most operators catching orange roughy in the "South East Fishery" had quota restrictions imposed upon them that were unreasonably low. As a matter of law, the whole scheme was flawed in such a way that no orange roughy fishing was lawful. One could well take an extremely lenient view of fishermen taking reasonable quantities of orange roughy in 1992, and misrepresenting the true sizes of their catches, in a situation where the regulatory regime was unreasonable and invalid, and was beginning to receive judicial recognition as such by the month of September. However the criminality alleged relates to the making of the conspiratorial agreement, and the sustaining of that agreement not only in 1992, but also in 1993 when a valid quota system, not argued to have been unreasonable, was in operation.

The extent of the understatement is also a significant matter. In Guillot v Hender (supra) at 303, the Full Court said the following concerning imposition charges relating to understatements in SEF2 forms:

"It may be conceded that, if the appellants had known that the 1991 Plan and relevant Fisheries Notices and licence conditions were invalid, they may not have made false declarations as to the amount of their catch. Had they known the real position, they may have had no motive to commit an offence under s 29B. It does not follow that the offences, if committed, were illusory offences. At first instance, counsel for the appellants conceded that 'there was a significant misrepresented understatement leading to a significant economic benefit to' them. In contrast to honest operatives who correctly stated their catch, the appellants were not constrained by AFMA to limit the amount of their catch to the quotas fixed, albeit invalidly, by the authority. They did not suffer the detriment to which honest operators were subject, being no less a detriment because imposed unlawfully. In those circumstances, it might well be said that the benefit in view was, in a practical sense, a benefit in fact acquired."

The Crown alleges that the submission of false SEF2 forms was likely to deflect AFMA and its officers from the proper performance of their public duties in relation to the determination of catch restrictions and quotas for orange roughy in the "South East Fishery". The evidence suggests that AFMA and its officers placed little or no reliance on SEF2 forms received in 1992 and 1993 because of perceptions that their contents were unreliable. From one perspective, the provision of unreliable information may be seen as somewhat innocuous if the information was unlikely to be relied upon. But from another perspective, if there was a widespread pattern of the provision of misleading information to a regulatory authority carrying out an important public function, to such an extent that important data received from the fishing industry was treated as unreliable, then conduct likely to contribute to that situation might be seen as involving a high degree of culpability.

It is part of the Crown case that the understatement of orange roughy catches in SEF2 forms was likely to deflect those AFMA officers who were responsible for instituting or recommending prosecutions from the proper performance of their duties in relation to prosecutions. However prosecutions for the contravention of quota restrictions in 1992 would have been unsustainable. This aspect of the Crown case is therefore of more significance in respect of 1993, but there is a real possibility that the Crown will not be able to establish that the quotas validly allocated to the relevant permit holders for 1993 were in fact exceeded.

It is also part of the Crown case that the submission of false SEF2 forms was likely to deflect AFMA officers from the performance of their public duties in relation to the processing of applications for the transfer of quota entitlements from one operator to another, and in relation to the carrying over of unused quota entitlements from one year to another. As I have said, quota entitlements were valuable commercial rights. If the Crown does not establish that the relevant 1993 quotas were exceeded, the alleged likelihood of deflection in respect of duties concerning quota transactions will have very great significance.

Because of the alleged scale of the orange roughy fishing operations with which the accused were allegedly associated in 1992 and 1993, and the likely benefits to those involved in the exceeding of quotas (valid or invalid) and/or the underreporting of catches, I think the s86A charge in this case must be regarded as a very serious one. It is true that prosecutorial delays can sometimes result in lower penalties, particularly when offenders have undergone reform prior to their cases being dealt with. However I do not consider the possibility of delay resulting in lower penalties detracts significantly from the seriousness of the charge.

It was submitted that, despite a belief on the part of some AFMA officers that the understatement of catches was very common in the "South East Fishery" in 1992 and 1993, few other people had been prosecuted in connection with such understatements, and that these accused, if convicted, should therefore be dealt with leniently. However I do not think this factor detracts from the seriousness of the charge. The obtaining of evidence as to fisheries offences can be extremely difficult. If an unlawful practice is common, the result will often be that only a few offenders out of many will be caught. If that was in fact the situation, I do not think any of the relevant authorities can legitimately be criticised for prosecuting those few offenders against whom they consider they have sufficient evidence to obtain convictions.

In relation to the significance of the alleged likelihood of AFMA officers being deflected from their duties, it was submitted that, once surveillance operations had been undertaken and evidence relating to the relevant vessels was being marshalled, a perception that there had been gross over-fishing and gross understating of catches did not lead to AFMA taking any steps in relation to prosecutions, quota transfers, calculation of quota entitlements, the cancellation or suspension of permits, or the granting of permits. However the volume of evidence and the complexity of the investigation must have contributed very significantly to the failure of AFMA officers to take immediate steps to act on the information made available to them. I therefore do not think that their failure to take action, other than the taking of steps towards the present prosecution, detracts from the seriousness of the s86A charge.

Conclusion

The factors weighing in favour of dismissing the conspiracy charge or permanently staying the proceedings can be summarised as follows. The adoption of unfair quota formulae by the Minister for the purposes of the 1991 management plan resulted in some types of substantive charges being unavailable in respect of SEF2 forms completed in 1992, and the exceeding of quotas in 1992. An erroneous perception as to the availability of charges as to the provision of false information in respect of 1992 SEF2 forms may have led to such charges not being laid in respect of 1992 forms. The unavailability of substantive charges in relation to the recording and reporting of catches in 1993 resulted from blunders on the part of persons in authority. The need to repeat the 1992 surveillance operation in 1993 might well have resulted in the alleged conspiracy continuing for about a year longer than it otherwise would have. Prosecutorial delays of some years have no doubt had adverse effects on the memories of witnesses. Mr Anderson is no longer available. The management of the legislative and administrative arrangements concerning the "South East Fishery" by AFMA in 1992 and 1993 were permeated by carelessness, ineptitude, and a disregard for the rule of law.

However some of these factors have operated to the benefit of the accused in relation to the exclusion of evidence. Many of them can be taken into account in favour of the accused in relation to penalty if they are convicted. Bearing those matters in mind, I do not think the relevant factors, in combination, result in it being in the interests of justice for a charge as serious as this one to be dismissed. I do not think it appropriate to grant a permanent stay of the proceedings on the indictment either. The relevant matters do not combine to produce a fundamental defect which goes to the root of the trial. Proceeding with the trial would not bring the administration of justice into disrepute, or be so unfairly and unjustifiably oppressive that there would be an abuse of the Court's process. It is for these reasons that I decided to refuse the application.