R v Turner (No 17) - [2002] TASSC 18

[2002] TASSC 18

CITATION: R v Turner (No 17) [2002] TASSC 18

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:  19 March 2002

DELIVERED AT: Hobart

HEARING DATES: 26 - 30 March,
26, 27 April,
8, 17, 18, 23, 30 May,
8, 21 June,
2, 17, 23, 25, 27, 30, 31 July,
1-3, 6-10, 13-17, 20-24, 27-31 August,
3-6, 10-12, 14, 17-21, 24-26, 28 September,
1-5, 8, 9, 16-19, 22, 23, 29 October,
1, 2, 7, 8, 29 November,
18 December 2001,
14, 31 January,
1, 18-22, 25-28 February,
1, 4 - 8, 18, 19 March 2002

JUDGMENT OF: Blow J

CATCHWORDS:

Evidence - Documentary evidence - Statutory provisions relating to business records - Particular cases - Books kept by corporation - Meaning of "kept".
Corporations Act 2001 (Cth), ss1305, 1307.
Duke Group Ltd v Pilmer (1994) 63 SASR 364; Valoutin v Furst (1998) 154 ALR 119, followed.

Residues Treatment and Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54; The Tubby TroutPty Ltd v Sailbay Pty Ltd (1993) 42 FCR 595, not followed.
R v Connell (1996) 14 ACLC 32; Caratti v R (2000) 22 WAR 527, referred to.

Aust Dig Evidence [122]

REPRESENTATION:

Counsel:
Crown:  M Rozenes QC, K E Read, J Read & I M Arendt
First Accused:  M L Abbott QC & M Selley
Second Accused:  G L Sealy & B R McTaggart
Third Accused:  P A Dunn QC & J D Edwardson
Fourth Accused:  B J Powell QC & G A Brown
Fifth Accused:  J M Fuller

Solicitors:
Crown:  Commonwealth Director of Public Prosecutions
First Accused:     Jennings Elliott as agents for:   Iles Selley
Second Accused:  Ogilvie Jennings
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 ID Number: [2002] TASSC 18
Number of Paragraphs: 31

Serial No 18/2002
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 17)

REASONS FOR JUDGMENT BLOW J

19 March 2002

These are my reasons for a determination made by me pursuant to the Criminal Code, s361A on 18 March 2002. The accused have pleaded not guilty, but a jury has yet to be empanelled. The Crown alleges that they conspired to understate orange roughy catches in returns submitted to the Australian Fisheries Management Authority ("AFMA") in 1992 and 1993, or to cause such catches to be understated in such returns. The Crown proposes to rely upon a substantial quantity of documentary evidence, apparently including documents seized from the offices of a fish processing company in December 1993 and June 1994. The evidence said to have come from that company includes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Turner (No 17)

Details

AGLC: R v Turner (No 17) [2002] TASSC 18
Case: [2002] TASSC 18
Decision Date: 19 March 2002

CaseChat Overview and Summary

In this case, the Supreme Court of Tasmania was required to determine the scope of the admissibility of documentary evidence under the Corporations Act 2001 (Cth). The court was asked to decide three main questions: (1) whether s1305 of the Corporations Act applies to all books retained in the custody of a body corporate under a requirement of the Corporations Act, or only to those required to be maintained in a systematic fashion; (2) whether s1305(2) operates to deem a document not only to be a book and to have been kept by a body corporate, but also to have been kept under a requirement of the Act; and (3) whether the prohibition in s1307(1) of the destruction of books affecting or relating to the affairs of a company constitutes a requirement of the Act as to the keeping of books for the purposes of s1305(1). The court found that s1305 applies to all books retained in the custody of a corporation under a requirement of the Corporations Act, and not just those required to be maintained in a systematic fashion. The court also found that s1305(2) operates to deem a document not only to be a book and to have been kept by a body corporate, but also to have been kept under a requirement of the Act. However, the court held that the prohibition in s1307(1) of the destruction of books affecting or relating to the affairs of a company does not constitute a requirement of the Act as to the keeping of books for the purposes of s1305(1). This decision has important implications for the admissibility of documentary evidence in criminal cases involving corporations.

Orders