R v Turner (No 2)
[2001] TASSC 13
•21 February 2001
[2001] TASSC 13
CITATION: R v Turner & Ors (No 2) [2001] TASSC 13
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: 21 February 2001
DELIVERED AT: Hobart
HEARING DATES: 6 February 2001
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Averments - Particulars - Conspiracy to defraud Commonwealth or public authority under Commonwealth - Deflection of public officers from duty.
Aust Dig Criminal Law [714]
REPRESENTATION:
Counsel:
Crown: K E Read and J Read
First Accused: M L Abbott QC
Second Accused: B R McTaggart
Third Accused: M L Abbott QC
Fourth Accused: M L Abbott QC
Fifth Accused: J M Fuller
Solicitors:
Crown: Commonwealth Director of Public Prosecutions
First Accused: Jennings Elliott as agents for: Piper Alderman, Lawyers
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 13
Number of Paragraphs: 29
Serial No 13/2001
File No 320/2000
THE QUEEN v PHILLIP BRUCE TURNER,
MERVYN ROBIN LEE, CORNELIUS MARINUS JANSEN,
DAREN TE ARIKI CHARLES COULSTON
and ANTONIO TEDESCO
REASONS FOR JUDGMENT BLOW J
21 February 2001
The five accused have been charged with a single count of conspiracy to defraud the Commonwealth and the Australian Fisheries Management Authority ("AFMA"), an authority under the Commonwealth, contrary to the Crimes Act 1914 (Cth), s86A. For some months counsel for each of them has contended that insufficient particulars of the charge have been supplied. Applications were made on behalf of each of them for the indictment to be quashed pursuant to the Criminal Code, s352, and/or for proceedings thereon to be stayed pending the provision of further particulars. I heard argument as to the sufficiency or otherwise of the particulars on 7 December 2000, and made an order for the delivery of certain particulars on 14 December 2000, publishing written reasons for my order: R v Turner & Ors [2000] TASSC 177 ("my previous reasons"). I made a mistake in the wording of my order. I ordered the Crown to deliver on or before 5 February 2001 particulars of "(a) the identities of the persons or entities allegedly deflected from the performance of their duty or duties; (b) the duty or duties that each of them was allegedly deflected from performing; (c) the manner in which they were allegedly so deflected; and (d) the intention, if any, that it is alleged that each accused had as to the deflection of them from the performance of such duty or duties."
The Crown contends that the accused conspired to provide false information to the Commonwealth and AFMA as to catches of orange roughy, understating the quantities caught. It is alleged that this amounted to a conspiracy to defraud in that the provision of the false information was likely to deflect AFMA and some individuals from carrying out their public duties. The actual deflection of anyone from the carrying out of a public duty is not an ingredient of the charge. By mistake, I worded items (a), (b) and (c) in my order as if actual deflection was an ingredient of the charge. I should have ordered the delivery of particulars as to (a) the identities of the persons or entities allegedly likely to be deflected from the performance of their duty or duties; (b) the duty or duties that each of them was allegedly likely to be deflected from performing; and (c) the manner in which they were allegedly likely to be deflected. Item (d) was not affected by my mistake.
This matter next came before me on 6 February 2001. Counsel for the Crown and all accused were agreed that the conclusions that I reached in my previous reasons should have led to the making of an order for particulars in the sort of terms I have set out above, and that I could and should recall (ie, set aside) my order in accordance with the principles discussed in Electrolytic Zinc Company of Australasia Ltd v Fisher 31/1989, Underwood J and R v Billington [1980] VR 625, or at the least vary it accordingly. On 6 February 2001, I made an order setting aside my previous order. I thought it inappropriate to resort to legal fictions by making an order varying it ab initio, or by making a fresh order nunc pro tunc retrospectively requiring the delivery of particulars on or before a date that had already passed.
The Crown, quite appropriately in my view, had taken the liberty of delivering particulars in accordance with the order that I ought to have made, as distinct from the order that I in fact made. Those particulars are undated, but my associate was sent a copy by facsimile dated 31 January 2001. It is clear that these new particulars are intended to supersede all previous particulars, however provided. To the extent that they put the Crown case on a new basis, such a course is permissible. Counsel for all accused now contend that the new particulars are themselves inadequate, and have sought an order for the provision of further and better particulars. At this stage, the Court has not been provided with the usual Crown papers comprising depositions, witness statements, and copies of proposed documentary exhibits.
(a) Identities of persons or entities allegedly likely to be deflected from the performance of their duties
The new particulars divide such persons and entities into three categories. Category 1 comprises AFMA and "The Minister". No doubt the minister referred to is the Minister for Primary Industries and Energy, who administered the relevant Commonwealth fisheries legislation. Category 2 comprises "(i) The Licensing and Entitlements Section of AFMA, (ii) The Compliance Section of AFMA, (iii) The Monitoring Unit of AFMA, and (iv) The south eastern fishery section of AFMA". Category 3 comprises "(i) The Total Allowable Catch Sub-Committee of the Management Advisory Committee, (ii) The Management Advisory Committee, and (iii) The AFMA Board". No names of individuals have been supplied by way of particulars of the identity of the Minister, nor of the members of the various groups (three sections, a unit, a sub-committee, a committee, and a board) listed in Categories 2 and 3. Counsel for the accused are now seeking an order for the delivery of written particulars of the identities (ie, names) of the individuals and/or entities (apart from officers of AFMA), if any, whose intended or likely deflection from the performance of their public duties is relied on by the Crown. The reference to intention is misconceived, since the Crown has made it clear in the new particulars that it is not alleged that any of the accused intended to deflect anyone from the performance of a public duty, as distinct from contending that each accused had knowledge as to the alleged likely deflection from duty.
In the reasons for my previous order at par19, I concluded that the earlier particulars were deficient in that they failed to identify the individuals and/or entities, apart from AFMA, if any, whose likely deflection from the performance of their public duties was relied on by the Crown, subject to an exception in relation to the identities of the AFMA officers responsible for maintaining the records of quotas, catches, and running balances as to what quantities of orange roughy individual operators remained entitled to take from time to time under their quota allocations.
The Crown contends that the new particulars sufficiently identify the relevant individuals or groups of individuals. I agree. The indictment alleges that the accused conspired together over a period of nearly 23 months, from 3 February 1992 until 31 December 1993. No doubt the membership of some or all of the groups referred to in Categories 2 and 3 changed, or at least was likely to change, from time to time during that period. Individual public servants may have sometimes acted, or been likely to act, in substantive positions other than their own. There may also have been a change of Minister. The likely impact of any significant understatement of orange roughy catches could well have endured for months or years after the time of the provision of false information, particularly in relation to decision-making as to orange roughy quotas and allowable catches. It is important not to lose sight of the reason that particulars are provided: to give the accused and defence counsel reasonable warning of the case that they will be required to meet at trial. Given that the Crown alleges a conspiracy over a period of nearly 23 months that was likely to have a continuing impact on groups whose membership was likely to change from time to time, and on a Minister who was likely to be replaced from time to time, rather than on one or more specific public officers holding particular positions at a particular time, I think the Crown has taken the most appropriate course by referring in the new particulars only to the Minister and to the various groups allegedly likely to have been affected. In my view, the reference to the Minister and to each of the various groups has been sufficient to give the accused and their counsel reasonable notice as to whose likely deflection from duty is relied upon by the Crown.
(b) The duty or duties that they were allegedly likely to be deflected from performing
The new particulars contain material as to the duties that the Crown alleges that the persons in Categories 1, 2 and 3 were likely to be deflected from performing. As to Category 1, it is asserted that AFMA and the Minister each had a duty to pursue certain statutory objectives appearing in the Fisheries Management Act 1991 (Cth), s3, and the Fisheries Administration Act 1991 (Cth), s6. The objectives relied on by the Crown are those set out in s3(1)(a), (b) and (d) of the former Act, and s6(1)(a), (b) and (d) of the latter. I need not reproduce those provisions here. It was submitted on behalf of the accused that the particulars as to the duty or duties that persons or entities were allegedly likely to be deflected from performing were deficient in that there was no way that individuals performing duties could be related to specific duties, and that counsel did not know what the relevant individuals' employment statements and job descriptions were. I cannot see how those comments can be applied to AFMA or the Minister. I assume they can only relate to the groups of persons included in Categories 2 and 3.
The new particulars contain short descriptions of the duties, or perhaps more accurately the role, of each of the seven groups of persons included in Categories 2 and 3. Between three and five lines are devoted to the duties of each such group.
Counsel for the accused are now seeking an order for the provisions of particulars of "The duties of the individuals and the entities (including AFMA) which the Crown contends were or were likely to have been deflected by the provision of false catch information". The wording of the proposed order is very general, and is not directed to any perceived deficiency in the new particulars.
So far as the Licensing and Entitlement Section of AFMA is concerned, the new particulars contend that its relevant duties were "To grant licenses [sic] and fishing permits and to be responsible for the transferring of those fishing concessions". At committal, counsel for the Crown opened the case on the basis that the Minister had purportedly imposed quotas for the taking of orange roughy in the relevant fishery for the year 1992 by means of a management plan under the Fisheries Act 1952 (Cth) which was later declared void pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), and that quotas for 1993 were imposed by AFMA, apparently not pursuant to any statutory management plan, but pursuant to its power to issue fishing permits authorising the taking of limited quantities of orange roughy by individual operators pursuant to the Fisheries Management Act 1991 (Cth), s32. It seems likely that public servants working in the Licensing and Entitlement Section of AFMA issued licences and permits, and processed transfers thereof, as delegates of the Minister and/or AFMA, and in accordance with policy directives, guidelines, or similar documents imposing duties upon them from time to time. The fact that the purported management plan for 1992 was declared void raises difficult questions as to what public duties, if any, members of the relevant section were carrying out during that year. In my view, the new particulars do not deal adequately with such matters. I think the Crown should deliver further and better particulars of the duties that the Licensing and Entitlement Section of AFMA was likely to be deflected from performing, as follows:
(i)the duties of the section as to (a) granting licences; (b) granting fishing permits; and (c) effecting transfers thereof, discharged by members of that section (i) as delegates of the Minister; (ii) as delegates of AFMA; or (iii) in any other, and if so what, capacities;
(ii)in each such combination of circumstances, the policy directives, guidelines, or other such instrument or instruments, if any, that governed the granting and transfer of such licences and permits.
So far as the Compliance Section of AFMA is concerned, the new particulars contend that its duties were "To be responsible for the planning, co-ordination and review of compliance programs to ensure their effectiveness and responsibility for prosecution action in regard to breaches of the Fisheries Act 1952 and the Fisheries Management Act 1991". As to the manner in which this section was likely to be deflected from its duty, it is asserted that reliance on false catch information could have misled it "into misdirecting resources and failing to prosecute breaches of the legislation". Against that background, I think it is appropriate for the Crown to provide particulars of all policy directives, guidelines, or other documents upon which it relies as imposing duties on members of that section as to prosecution or other enforcement action.
So far as the Monitoring Unit of AFMA is concerned, the new particulars contend that its duties were "to enter SEF2 information into AFMA records and databases and to handle all quota transactions including leasing, purchase, allocation and assignment to boats". The term "SEF2 information" refers to SEF2 forms. The Crown contends that operators catching orange roughy were required to fill in details of their catches on such forms and submit them to AFMA. The only thing unclear in the particulars provided as to the duties of this unit is whether its duties were confined to the recording of information and transactions, or whether it exercised some sort of discretion in relation to "quota transactions". The Crown should provide particulars of any alleged duty of that unit to do anything other than record information that it relies on, specifying what that duty was, how it was imposed, and in what capacities (eg, as delegates of AFMA) members of the unit discharged it.
So far as the South East Fishery Section of AFMA is concerned, the new particulars rely upon alleged duties "to develop workable management arrangements for the South East Trawl Fishery that resulted in efficient and sustainable use of the fishery's resources of the South East Fishery". No detail is given as to what sort of "management arrangements" are referred to. The particulars as to the manner in which that section was allegedly likely to be deflected shed no light on the scope of such management arrangements. It is said only that the advice provided by the section and the management arrangements developed could be deflected by reliance upon false information contained in the SEF2 forms. It appears elsewhere in the new particulars that AFMA was in the habit of fixing a total allowable catch for orange roughy for the fishery ¾ for each calendar year, I have been told ¾after first receiving advice from its Management Advisory Committee, which, in turn, first received advice from its Total Allowable Catch Sub-Committee. The particulars indicate that the South East Fishery Section of AFMA functioned as some sort of think tank, but it is not clear what role it played or, more correctly, what duty it had, if any, in relation to the provision of advice, nor as to the fixing of a total allowable catch for orange roughy each year, nor what other sorts of management arrangements it had the role or duty of developing. Particulars should be provided as to what advisory duties it had, what sorts of management arrangements it allegedly had the duty to develop, and how those duties were allegedly imposed. In this regard, I imagine that such a section could well have had a duty to advise as to the development of policies governing not only the quantity of fish that could be taken, but also as to fish sizes, depths, areas where fishing was prohibited or restricted, and so forth.
The new particulars assert that it was the duty of the Total Allowance Catch Sub-Committee of the Management Advisory Committee to advise the latter "of a total allowable catch consistent with the objectives of AFMA and the minister as set out in the Fisheries Management Act 1991 and the Fisheries Administration Act 1991". It is asserted that that committee's duty was to advise the AFMA board of a total allowable catch consistent with those objectives. There is no reason to think that relevant duties were imposed on the committee or the sub-committee in terms more specific than those appearing in the particulars. It was not submitted that the particulars of these bodies' duties were insufficiently detailed.
As to the AFMA board, the particulars allege it had a duty to set a total allowable catch consistent with the same statutory objectives. It may well be that, whilst it had a practice or policy of discharging its duty to pursue those objectives by setting a total allowable catch for orange roughy in the relevant fishery for each calendar year, it had no legal duty to fix a total allowable catch. In any event, counsel did not submit that the description of the board's alleged duty was insufficiently detailed, and I will therefore not order that more detailed particulars thereof be provided.
In my view the alleged duty of each of the seven groups is not of such a nature that the accused and their legal representative need particulars of the position descriptions, duty statements, and so forth relating to any of the individuals in any of those groups. What is important is that the Crown alleges that various groups were discharging various duties. I do not see how details as to the division of labour could assist the accused or their counsel in understanding the case that they have to meet.
(c) The manner in which they were allegedly likely to be deflected
Although the particulars do not say so in these terms, it is clear that the Crown contends that the provision of false information as to orange roughy catches was likely to corrupt relevant decision-making processes as to the determination of future quotas and/or restrictions in relation to orange roughy. In my previous reasons, at par27, I said this:
"The way or ways in which information as to orange roughy catches was acted on or likely to be acted on from time to time in the determining of future quotas or restrictions needs to be particularised so as to acquaint the accused and their counsel with the Crown case and confine its scope. If the decision-making processes of AFMA remain unparticularised, there is a risk that they will not be fully known to the accused, and that the accused might be confronted at trial with a suggestion that those decision-making processes were corrupted by the provision of false information in some respect or respects that could not reasonably have been anticipated."
Counsel for the accused now wish me to order the delivery of particulars of the relevant process of decision-making, in the following terms:
"1.3 The process(es) of decision making by:
(a)the Minister for Primary Industries and Energy ('the Minister'); and/or
(b)within the Department of Primary Industries and Energy ('DPIE'); and/or
(c)within AFMA; or
(d)by or within any other relevant person or persons (and, if so, whom);
or
(e)bodies (and, if so, which)
by which orange roughy quotas for:
(a)the South East Fishery ('the Fishery') as a whole and/or
(b)for individual vessels operating therein; or
(c)relevant licence or permit holders therein,
were determined or were intended to be determined which the Crown contends were or were likely to be affected by the provision of false information as to catches, including but not limited to (Reasons para 25, 3rd sentence, para 27 1st sentence, 5th sentence and 11th sentence):
1.3.1whether the relevant decisions were or were intended to be made at meetings or by delegates or both and, whichever, by whom and when (Reasons para 27, 7th sentence);
1.3.2whether such decisions were or were intended to be made pursuant to a management plan, annual plan, policy or ad hoc process and, whichever, particulars of such plan, policy or process (Reasons para 27, 6th sentence);
1.3.3the practices or intended practices of the office of the Minister, DPIE and AFMA as to the preparation of recommendations and reports in the course of such decision making process (Reasons para 27, 8th sentence);
1.3.4what was done, or intended to be done, by them with information as to orange roughy catches and how such information was acted upon or was likely to be acted upon at all stages of the said decision making process, whatever those stages were, stage by stage (Reasons para 27, 9th sentence, para 32, second sentence (b));
1.3.5what information as to orange roughy catches was acted upon or was likely to be acted upon from time to time (and when) in the determining of future quotas or restrictions for the Fishery (Reasons para 27, 11th sentence);
1.3.6how is it alleged that the provision of false information as to the quantities of orange roughy taken by Victrawl and Trident did or was likely to affect any decision making process and/or any decision (and, if so, which decisions) as to total allowable catches of orange roughy for the Fishery and individual quotas or orange roughy that would be permitted to be taken in the Fishery by particular vessels or permit holders (Reasons paras 29 and 32, 1st` sentence, 2nd sentence (b));
1.3.7who determined what the total allowable catch of orange roughy for the Fishery would be and what each individual quota of orange roughy would be and when such determinations were made (Reasons para 32, 2nd sentence (a));
1.3.8the means by which the Crown alleges that the provision of such false information was likely to have an impact on the discharge of anyone's public duty, what such duty was and who discharged it, otherwise than through the preparation of management plans (or other controls on the Fishery) based on such false information, and the preparation of inaccurate records based on such information (Reasons para 33)."
The references in italics are to my previous reasons.
It is appropriate to begin with some general observations as to the scope of the orders sought. First, it is inappropriate that I make any order as to anyone outside Categories 1, 2 and 3 referred to above, since the Crown has confined its case to those persons. Secondly, the Crown case is concerned only with what was likely to happen. What was likely to happen may have varied from time to time during the period of the alleged conspiracy. The relevant decision-making processes, or some of them, might have been liable to change.
After hearing oral argument as to the adequacy of the new particulars on 8 February 2001, I permitted defence counsel to make supplementary written submissions in reply. Mr Abbott QC and Miss Fuller took the opportunity to submit that the new particulars were inadequate in various respects. They submitted that they did not state anything as to various decision-making processes of the Minister and AFMA. The new particulars make it clear that the Minister instituted a method of management based on limiting the quantity of each species of fish taken from the fishery with effect from 1 January 1992, but give no indication of the role of the Minister after AFMA came into existence on 3 February 1992. I think the new particulars do not adequately explain how it is alleged that the Minister was likely to be deflected from his duty in that they are silent as to the decision-making mechanism or mechanisms allegedly likely to have been corrupted by the provision of false information. For example, it is alleged that the Minister had a duty to ensure through proper conservation and management measures that the living resources of the Australian Fishing Zone are not endangered by over-exploitation, and it is alleged that the use of incorrect catch returns to calculate whether the living resources of the Fishing Zone were endangered by over-exploitation would lead to an incorrect and misleading result. The relevant passage in the particulars refers to a cause and effect, but not to a mechanism. The question of whether the provision of false catch information was likely to deflect the Minister, as distinct from anyone else, from the performance of his duty in any respect may well become a significant one at the trial. The accused should therefore be provided with particulars as to the actual or likely decision-making processes of the Minister which were allegedly likely to be corrupted by the provision of false catch information. It would be helpful if the Crown had regard to par42 of the written submissions in reply of Mr Abbott QC and Miss Fuller in providing such particulars.
The new particulars are much more informative as to the decision-making processes of AFMA and the roles of the various groups associated with it. The provision of the further particulars of the alleged duties of the Licensing and Entitlement Section of AFMA and its Monitoring Unit, in accordance with pars11 and 13 above, should make orders in the terms of pars1.3.1 and 1.3.2 of the orders sought unnecessary. As to par1.3.3, I believe sufficient particulars have been provided as to the chain of recommendations leading to AFMA's annual fixing of a total allowable catch. Particulars in accordance with pars11 and 13 above should make unnecessary any further order as to particulars of the subsidiary decision-making processes involving the allocation of the total catch between operators or vessels within the fishery. I think an order in the terms of par1.3.4 is unnecessary since the particulars reveal that the relevant information was recorded by the Monitoring Unit and no doubt used by the sub-committee and the committee in providing advice as to the total allowable catch. The same applies to pars1.3.5 and 1.3.6. As to par1.3.7, it is clear from the particulars that the AFMA board determined the total allowable catch. Particulars under pars11 and 13 above will reveal who had the duty of making the subsidiary decisions. Paragraph 1.3.8 deals with a comment that I made as to the earlier particulars not necessarily being exhaustive. The new particulars are so worded as to confine the Crown to the matters alleged therein. An order in the terms of par1.3.8 is therefore inappropriate.
Mr Abbott QC and Miss Fuller submitted that the particulars as to how the Category 2 groups were likely to be deflected from their duties were inadequate in certain respects. They complained that the new particulars did not state what transactions it was likely that the Licensing and Entitlement Section of AFMA would permit if it treated false data as correct data, but I think the provision of the particulars referred to in par11 above will be sufficient to make the answer to that question clear. They complain that the particulars do not state what data from SEF2 forms the Compliance Section had access to, for what purpose, whether it ever referenced that data, and, if so, what data, when, and why. In my view, those topics are all matters of evidence, and not appropriate to be dealt with in an order for particulars. They submit that the particulars do not reveal what resources the Compliance Section could have been misled into misdirecting and what breaches of what legislation it could have been misled into failing to prosecute. I think the nature of the Section's resources is a matter for evidence, and not for an order for particulars. However, I think it is appropriate that particulars be provided of the legislative provisions creating offences which the Crown alleges that the Compliance Section was likely to be deflected from prosecuting. Mr Abbott QC and Miss Fuller complained that the new particulars did not state what quota transactions the Monitoring Unit might have permitted if it had known that the SEF2 data was incorrect. I think the provision of the particulars referred to in par13 above will be sufficient to provide particulars of the manner in which it is alleged that the Monitoring Unit was likely to be deflected from its duty. Mr Abbott QC and Miss Fuller also complain that the new particulars do not reveal which of the South-East Fishery Section's management arrangements could have been affected by reliance upon false catch information, and how. I expect that the provision of particulars as to its duties in accordance with par14 above will be sufficient to make it clear how the provision of false information would have been likely to deflect it from performing them. Mr Abbott QC and Miss Fuller complain that the new particulars do not state the processes by which the Total Allowable Catch Sub-Committee advised the Management Advisory Committee, nor the processes by which the latter committee advised the AFMA board, nor how that advice was implemented. I think the means of communication and implementation are matters for evidence, rather than the provision of particulars. They complain that the particulars do not say how the calculation of the amount of fish taken was relevant to the decisions of the sub-committee or the committee, but I think particulars as to this topic need not be ordered since it is abundantly clear that the extent of orange roughy catches must have been a very significant factor that these bodies took into account in recommending what a total allowable catch should be from year to year. Mr Abbott QC and Miss Fuller seem to be complaining that the new particulars as to the manner in which the Category 3 groups were likely to be deflected from their public duties do not specify what decisions are being referred to. However, it is clear from the particulars that the decisions referred to are those of the AFMA board setting total allowable catches. They complain that the particulars do not state the processes by which the committees and/or the board determined the amount of fish taken, the sources of information used in those processes, and how the catch return data was considered in those processes. In my view, these are matters for evidence, rather than an order for particulars.
In the new particulars, as to the manner in which the Monitoring Unit of AFMA was allegedly likely to be deflected, it is said only that it "could be deflected if it treated the SEF2 information as correct and permitted quota transactions which it ought not permit". This, of course, has to be read together with the particulars relating to the duties of the Unit ("to enter SEF2 information into AFMA records and databases and to handle all quota transactions including leasing, purchase, allocation and assignment to boats"). Mr Abbott QC complained that the new particulars did not make it clear whether the Crown still relies on the proposition that the recording of false catch information and the calculation of an incorrect running balance as to the quantities of fish that individual operators remained entitled to take ("decrementing the quota") involved a relevant deflection from the performance of a public duty. The provision of the particulars referred to in par13 above should be sufficient to reveal precisely what the Crown alleges and relies upon as to the activities of the Monitoring Unit. As I understand the new particulars and the submissions of Mr Read, the Crown no longer relies on the likelihood of AFMA officers being deflected from a duty to "decrement the quota" as an ingredient of the charge, but should not be taken to have made any concession as to whether the process of decrementing the quota was in fact affected by the provision of false information.
Mr Abbott QC complained that it was not clear whether the total allowable catch was modified during the course of 1992. There is nothing in the new particulars to suggest how often the AFMA board fixed a total allowable catch. Information previously supplied suggests that it did so annually. To my knowledge, there has been no suggestion that it ever varied the annual figure for a total allowable catch, or that it was ever likely to. As there has been no allegation in any particulars that the provision of false catch information was likely to deflect AFMA from performing a public duty by causing it to vary inappropriately a determination as to a total allowable catch, it must be assumed that the Crown does not rely on any such allegation.
(d) The intentions of the accused
The new particulars make it clear that the Crown does not contend that any of the accused specifically intended to deflect anyone from the performance of a public duty. Notwithstanding that clarification, it has been submitted on behalf of the accused that I should order the Crown to deliver particulars of the duty or duties which it alleges the accused intended relevant persons to be deflected from discharging, and of the manner and/or extent of the alleged intended deflection. I will not order the provision of such particulars since the Crown does not allege that the accused intended to deflect anyone from any public duty.
New requests for particulars
In their written submissions in reply, Mr Abbott QC and Miss Fuller have submitted ¾for the first time, I think ¾that the accused are entitled to particulars of the knowledge that it is alleged they had, including "particulars of which officers they are alleged to have known might be prejudiced in the execution of their public duty if they acted on the false statements, and what public duties the Crown contends the defendants [sic] knew those officers were discharging". In his oral submissions in reply, Mr Abbott QC sought to ask the Crown when it is alleged that the conspiracy was entered into. Mr Read said that he would consider that matter.
In my view, it is inappropriate for me to deal with these two requests for particulars at this stage since the particulars sought have been requested during the making of submissions in reply, since the Crown has not had an opportunity to be heard in relation to them, and since there seems no particular urgency about the provision of such particulars. The Crown might provide particulars as to these matters which the accused and their legal advisers find satisfactory. If not, a further application for particulars as to these matters can be made at a convenient time.
Conclusion
For these reasons, I believe the Crown should provide the particulars referred to in pars11 - 14, 21 and 23 above, but that an order for the provision of any other additional particulars would be inappropriate. I order that the particulars referred to in pars11 - 14, 21 and 23, be provided by the Crown in writing.