R v Turner (No 3)

[2001] TASSC 32

[2001] TASSC 32

CITATION:                 R v Turner & Ors (No 3) [2001] TASSC 32

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:  26 March 2001
DELIVERED AT:  Hobart
HEARING DATES:  1 March 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 - Timing of conspiracy - Knowledge on part of accused.

Aust Dig Criminal Law [714]

REPRESENTATION:

Counsel:
     Crown:  M Rozenes QC and K E Read
     First Accused:  M L Abbott QC
     Second Accused:  B J Powell QC
     Third Accused:  J D Edwardson
     Fourth Accused:  B J Powell QC
     Fifth Accused:  M L Abbott QC
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 32
Number of Paragraphs:  11

Serial No 32/2001
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 3)

REASONS FOR JUDGMENT  BLOW J

26 March 2001

1. 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. I have recently ruled on two applications made on behalf of the accused for particulars of the charge: R v Turner & Ors [2000] TASSC 177; R v Turner & Ors (No 2) [2001] TASSC 13. On 1 March 2001, counsel for all accused made a third application for particulars, which I refused. These are my reasons for refusing that application. The particulars sought related to the timing of the alleged conspiracy and to the knowledge on the part of the accused which the Crown alleges and relies on as an ingredient of the alleged crime.

Timing of the alleged conspiracy

1. The particulars set out in the indictment allege that the accused "on and between 3 February 1992 and 31 December 1993 conspired together to defraud the Commonwealth and the Australian Fisheries Management Authority, an authority under the Commonwealth, by dishonestly agreeing to cause and permit false returns to be submitted … as to the quantity of orange roughy taken in the Australian Fishing Zone in 1992 and 1993."  The Crown has recently decided to apply to amend the indictment to change the commencement date of the alleged conspiracy to 1 December 1991, but has not finalised the wording of the proposed amendment.  It was not suggested by any counsel that I should defer dealing with the application for particulars in relation to timing as a result of the proposal to apply for such an amendment.

1. Mr Abbott QC made an oral application for particulars of "the time, or the period of time, during which they [ie, the Crown] assert the conspiracy was entered into".  Ms Powell QC and Mr Edwardson joined in that application on behalf of the other accused.  Senior counsel for the Crown, Mr Rozenes QC, explained to the Court that the Crown case would not be based on direct evidence as to when any agreement between the accused allegedly took place, but that the jury would be asked to draw an inference as to when it must have taken place; that 1 December 1991 was the day on which quotas for the taking of orange roughy were fixed; that the Crown asserted that there was no cause for any agreement to defeat the quota system prior to that day, and that it should be inferred that there was no agreement between the accused before then; but that it should be inferred that, before the first false return was allegedly submitted in February 1992, there must have been discussions between all or some of the accused resulting in the submission of false returns.  He said the Crown did not know whether the alleged agreement was concluded and finalised in all of its terms prior to the first false return being submitted; that the Crown was not alleging anything as to when any individual accused became a party to the alleged conspiracy; and that the Crown asserted that the alleged conspiracy was one of an ongoing nature. 

1. There is a substantial body of authority establishing that in such circumstances the Crown cannot be required to give detailed particulars of the date upon which an alleged conspiracy was entered into: R v Pepper and Platt (1921) 16 Cr App R 12 at 19; R v Ongley (1940) 57 WN(NSW) 116 at 117; R v Lacey (1982) 29 SASR 525 at 535; Cornelius v R (1987) 34 A Crim R 49 at 60, 96; Saffron v R (1989) 17 NSWLR 395 at 419, 436, 438, 446; Saffron v R (No 2) (1988) 36 A Crim R 315 at 319; Caratti v R [2000] WASCA 279 at pars59 - 68; DPP v Doot [1973] AC 807 at 827.

1. Mr Abbott QC acknowledged the existence of the authorities to that effect, but seized on a number of comments made by Mr Read on behalf of the Crown during argument concerning the second application for particulars.  Mr Read submitted at that stage that, when there is a conspiracy to defraud the Commonwealth or an authority under the Commonwealth by deflecting public officers from the performance of their public duties, it is not appropriate for the Crown to provide particulars of any actual deflection from duty, since actual deflection, as distinct from a likelihood of deflection, is not an ingredient of the crime.  In that context, he submitted that it was appropriate for the Crown to provide particulars only of what was likely at the time the conspiracy was entered into, and not of any actual deflection that resulted from the alleged conspiracy, actual deflection being no more than evidence of what had been likely when the conspiracy was entered into.  With respect to Mr Read, he overlooked the point ¾not directly relevant to the application then before the Court ¾that a conspiracy does not end with the making of an agreement, but will continue as long as there are two or more parties to it intending to carry out what was planned ¾a point succinctly made by Viscount Dilhorne in Doot (supra) at 823. If the Crown case had been that the alleged conspiracy occurred only at a particular time that the Crown was able to specify, as Mr Read's earlier submissions apparently suggested to Mr Abbott QC, it would have been appropriate to order that particulars of the date of the alleged conspiratorial agreement be provided. But Mr Rozenes QC has made it clear that the Crown case does not involve any such assertion. In the light of what Mr Rozenes QC has told the Court, and of the authorities that I have referred to, it was plainly inappropriate that I order the Crown to provide particulars as to when the alleged conspiracy was entered into.

Knowledge of the accused

1. On 14 December 2000, I ordered that the Crown provide particulars of (inter alia) the intention, if any, that it was alleged that each accused had as to the deflection of any persons or entities from the performance of their public duties.  Particulars were delivered on 31 January 2001, responding to that part of my order with the following:

"The Crown says that the Ds' [sic] had 'knowledge' as to the likely deflection from duty rather than 'intention'.  The knowledge alleged is knowledge that, if a public officer did act on the false statements as if they were true, he could be prejudiced in the execution of his public duty."

1. Mr Abbott QC made an oral application on 1 March 2001 for particulars of the knowledge that the Crown alleges.  The other defence counsel joined in that application.  Mr Abbott QC relied on the following passage in a written outline of Crown counsel's opening at the committal proceedings (at 14):

"Although mere recklessness as to the consequences of their actions appears to be enough to establish a conspiracy to defraud, in this case the conspirators intended to deflect the public officers from their duty. They clearly intended AFMA to be deceived by the false forms and to act on them. If it was not intended that the forms be acted upon then there was no point at all in falsifying them. The only manner in which the forms could be acted upon to achieve the desired outcome of the conspirators was such that AFMA should decrement less than the amount of quota represented by their true catch. There is sufficient evidence to establish not only that the conspirators knew that the forms were submitted to AFMA for the purpose of decrementing quota but also that the fishery was managed by limiting the catch by reference to quota. In this case, unlike Welham the conspirators also knew more precisely who was responsible for the management of the fishery.

The conspirators would not need to know in precise terms what AFMA's statutory duty was. In the economic imperilment cases it has been held that the defendant did not need to foresee the precise manner in which loss might occur and it was not necessary for the defendant to know who was responsible for monitoring the credit transactions nor precisely what that body's role and duties were."

He also relied on the following passage in that document (at 18):

"In relation to the knowledge of the Defendants that the conduct in which they agreed to engage would divert AFMA from the execution of its duties, such knowledge can be inferred because witnesses will say that this was common knowledge within the industry.  In addition, in relation to the Defendant Mr Turner, there is direct evidence of his knowledge of AFMA's role in managing the fishery in the form of a communication to Gail Hewitt for distribution to the South East Trawl Fisheries Industry Association - document A309 at pages 26 to 31."

He also relied on the following passage in that document (at 13):

"The purpose of providing this false information was to induce the Minister and AFMA to falsely record those catches in their records.  Consequently less quota was decremented from the allocation of each boat than would have been the case had they known the true amount of the catch."

1. Mr Abbott QC also relied on a comment made by Mr Rozenes QC during argument before me in relation to the first application for particulars, as follows:

"This offence involves an understanding, we would submit, of an authority under the Commonwealth, and what that authority's duties are."

1. In essence, Mr Abbott QC submitted that the accused and their counsel did not know what case they would have to meet at trial, in that they had not been informed of the nature of the Crown case as to the knowledge that it was alleged each accused had as to the existence of the public duties of the Commonwealth and AFMA, and as to the manner in which the provision of false information as to orange roughy catches was likely to deflect the Commonwealth, AFMA and their officers from the performance of their public duties.

1. Mr Rozenes QC made it clear during his submissions that the Crown would be relying on the letter allegedly written by the accused Turner to one Gail Hewitt, which was referred to in the extract from the committal opening I have quoted above, but that otherwise it did not propose to lead any evidence as to any specific knowledge as to such matters on the part of any of the accused.  He made it clear that the Crown would be asking the jury to infer that, as individuals involved in orange roughy fishing, each of the accused must have had a basic understanding that the Commonwealth and AFMA placed limits on the orange roughy that could be caught by each vessel, and taken from the fishery as a whole; that the Commonwealth and AFMA were involved in enforcing such restrictions; and that false information understating orange roughy catches might make some difference as to what they did in relation to the supervision of orange roughy fishing, the giving of warnings, confiscations and prosecutions.

1. Given that the Crown does not propose to lead any evidence as to the detailed knowledge of any accused apart from seeking to tender the letter allegedly written by Mr Turner, it is obviously inappropriate that I order the provision of any particulars as to detailed knowledge alleged and relied upon in relation to each accused.  So far as the knowledge that the Crown will seek to establish by a process of inference is concerned, Mr Abbott QC submitted that I should order the Crown to deliver particulars of the knowledge alleged to be notorious within the community of fishermen who fished in the south eastern fishery.  However Mr Rozenes QC made it clear that the Crown was relying on knowledge of only the most basic information: that a quota was established each year for a total allowable catch of orange roughy; that the total allowable catch was divided up between vessels permitted to fish for orange roughy; and that the distortion of information was likely to result in bigger quotas in the future, and in the operators who understated their catches not being stopped from catching more fish than the maximum quantities they were supposed to be restricted to.  He further made it clear that the Crown would be asserting that, on the basis of evidence establishing that forms were submitted understating catches of orange roughy, it ought to be inferred that the individuals submitting those forms understood that the submission of false information would operate to their advantage, and that this was a basis upon which such fundamental knowledge ought to be inferred.  In the light of that explanation as to the basis of the Crown case in relation to the knowledge of the accused, I accepted that there was nothing further that the Crown could reveal by way of particularising that aspect of its case.  It was therefore inappropriate to order the provision of any particulars as to knowledge.