R v Turner (No 7) - [2001] TASSC 87

[2001] TASSC 87

CITATION: R v Turner & Ors (No 7) [2001] TASSC 87

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:  3 August 2001
DELIVERED AT:  Hobart
HEARING DATES:  23 - 27, 30, 31 July, 1 - 3 August 2001
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law - Particular offences - Offences against the Government - Other offences - Conspiracy to defraud Commonwealth or public authority under Commonwealth - Deflection of public officers from public duty - Whether proof of actual deflection necessary.

Crimes Act 1914 (Cth), s86A.
Peters v R (1998) 192 CLR 493, Welham v Director of Public Prosecutions [1961] AC 103, referred to
Aust Dig Criminal Law [301]

REPRESENTATION:

Crown: M Rozenes QC, K E Read, J Read and I M Arendt
First Accused: M L Abbott QC and W P Boucaut

Second Accused:  A G Melick SC and B R McTaggart
     Third Accused:  P A Dunn QC and J D Edwardson
     Fourth Accused:  B J Powell QC and I C Robertson
     Fifth Accused:  C J Kourakis QC and 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 87
Number of Paragraphs: 15

Serial No 87/2001
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 7)

REASONS FOR DETERMINATION BLOW J

3 August 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. The Crown alleges that they conspired to cause and permit false returns to be submitted to AFMA as to orange roughy catches in 1992 and 1993, and that the submission of such false returns was likely to deflect public officers from the performance of public duties that they had pursuant to legislation relating to fisheries. The accused have all pleaded not guilty, but a jury has not yet been empanelled. It was submitted on behalf of the accused that, in order for the Crown to obtain a conviction, it would be necessary for it to prove beyond reasonable doubt not just that the submission of false returns was likely to cause a deflection from the performance of a public duty or duties, but that there was actual deflection from the performance of a public duty or duties.

On 27 July 2001, I made a determination in favour of the Crown in relation to that question pursuant to…

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 7)

Details

AGLC: R v Turner (No 7) [2001] TASSC 87
Case: [2001] TASSC 87
Decision Date: 3 August 2001

CaseChat Overview and Summary

The five accused, Phillip Bruce Turner, Mervyn Robin Lee, Cornelius Marinus Jansen, Daren Te Ariki Charles Coulston, and Antonio Tedesco, have been charged with conspiracy to defraud the Commonwealth and the Australian Fisheries Management Authority (AFMA) under the Crimes Act 1914 (Cth), s86A. The Crown alleges that they conspired to submit false returns regarding orange roughy catches in 1992 and 1993, with the intent to deflect public officers from their duties. The accused have pleaded not guilty, and the issue of whether actual deflection from the performance of a public duty must be proven by the Crown was raised. The court had to decide whether actual deflection was a necessary ingredient of the offence or if the likelihood of deflection was sufficient. Blow J determined that actual deflection is not required, following the precedents set in Peters v R and Welham v Director of Public Prosecutions. The court held that the possibility of deflecting a public officer from the performance of their duty is sufficient to establish the relevant element of the crime of conspiracy to defraud. The court dismissed the argument that special circumstances in the case required actual deflection to be proven. The Crown's case is based on the likelihood of deflection, and it was held that this was sufficient for a conviction without the need to prove actual deflection. The final orders were made in favour of the Crown, and the accused's argument that actual deflection was necessary was rejected.

Orders