State of Tasmania v Lin
[2011] TASSC 54
•4 October 2011
[2011] TASSC 54
COURT: SUPREME COURT OF TASMANIA
CITATION: State of Tasmania v Lin [2011] TASSC 54
PARTIES: STATE OF TASMANIA
v
LIN, Tu Ai
FILE NO/S: 188/2008
DELIVERED ON: 4 October 2011
DELIVERED AT: Hobart
HEARING DATE: 22 – 24, 27 June, 20 – 23, 26 – 29 September 2011
JUDGMENT OF: Evans J
CATCHWORDS:
Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Whether records belonging to or kept in the course of, or for the purposes of a business.
Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595, applied.
Evidence Act 2001 (Tas), s69.
Aust Dig Evidence [121]
Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Whether reasonable cause for non–compliance with a request to call as a witness the maker of a representation.
Evidence Act 2001 (Tas), s169.
Aust Dig Evidence [121]
Criminal Law – Particular offences – Offences against the Government – Other offences – Conspiracy to defraud by deflection a public officer from public duty – Public duty.
Tasmania v Lin [2011] TASSC 14; Herscu v R (1991) 173 CLR 276, referred to.
Living Marine Resources Management Act 1995 (Tas).
Fisheries (Rock Lobster and Giant Crab) Rules 2001 (Tas).
Aust Dig Criminal Law [2538]
Criminal Law – Procedure – Verdict – Alternative verdicts – Particular cases – Alternative charges of similar gravity – If guilty on either charge the jury should give its verdict on that charge alone.
R v Seymour (1954) 38 Cr App R 68, applied.
Stanton v R (2003) 77 ALJR 1151, referred to.
Aust Dig Criminal Law [3176]
REPRESENTATION:
Counsel:
Plaintiff: A R Jacobs, H Mannering
Defendant: P W Tree SC, K Baumeler
Solicitors:
Plaintiff: Director of Public Prosecutions
Defendant: Butler McIntyre & Butler
Judgment Number: [2011] TASSC 54
Number of paragraphs: 57
Serial No 54/2011
File No 188/2008
STATE OF TASMANIA v TU AI LIN
REASONS FOR JUDGMENT EVANS J
4 October 2011
The accused, Tui Ai Lin, was charged with conspiracy. Count 1 was a charge of conspiracy to defraud contrary to the Criminal Code, s297(1)(d). The alleged conspiracy was to use dishonest means to deflect a public officer from the performance of his or her public duties. The particulars to the count were that the accused:
" … at one or more places in Tasmania or elsewhere in Australia between on or about the 15th day of June 2001 and on or about the 2nd day of August 2005 conspired with Phillip Allan Stephens and/or with other people including Mrs Judith Stephens who were associated in fishing operations with the said Phillip Allan Stephens, to defraud the Minister for the time being administering the Living Marine Resources Management Act 1995 and/or the Secretary of the Department responsible to the Minister in relation to the administration of the said Act, by falsely under–declaring and/or under–recording in records, dockets and/or other documents including documents provided or required to be provided to the Minister and/or the Secretary pursuant to the said Act and Regulations and Rules made thereunder, the amount of rock lobster caught, landed, delivered and/or sold by or on behalf of the said Phillip Allan Stephens and/or Mrs Judith Stephens and received, purchased and/or processed by or on behalf of Southern United Seafood Australia Pty Limited, (also known as Southern Unite Seafood Australia Pty Limited), and by falsifying the records and books of account of the said Company in relation thereto, when such conduct would or could deflect the Minister and/or the Secretary from the performance of, or prejudice their performance of, public duties vested in them …".
The indictment included an alternative charge of conspiracy to commit a crime contrary to the Code, s297(1)(c). The particulars of the alternative charge were that the accused:
" … at one or more places in Tasmania or elsewhere in Australia between on or about the 15th day of June 2001 and on or about the 2nd day of August 2005 conspired with Phillip Allan Stephens and/or with other people including Mrs Judith Stephens who were associated in fishing operations with the said Phillip Allan Stephens, to defraud the Minister for the time being administering the Living Marine Resources Management Act 1995 and/or the Secretary of the Department responsible to the Minister in relation to the administration of the said Act, by falsely under–declaring and/or under–recording in records, dockets and/or other documents including documents provided or required to be provided to the Minister and/or the Secretary pursuant to the said Act and Regulations and Rules made thereunder, the amount of rock lobster caught, landed, delivered and/or sold by or on behalf of the said Phillip Allan Stephens and/or Mrs Judith Stephens …".
There was no direct evidence that the accused had entered into either of these conspiracies. The prosecution's case against him was advanced on the basis that the jury could infer from the evidence of 12 separate transactions that agreements of the nature of those that were the subject of the charges had been entered into. The following particulars were provided of those transactions:
"1He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 12799 and Fish Transfer Receipt No 31302 both dated 15.6.2001 and recording 702.2 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 15.7.2001 personally signed a Tasmanian Department of Primary Industries, Water and Environment Processor Return Form recording that 702 kilograms, whereas the actual weight received and subsequently paid for was approximately 835 kilograms.
2He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 19880 dated 10.12.2001 recording 2,239.6 kilograms of rock lobster being received from the vessel 'Southern Leader', and Fish Transfer Receipt No 31344 of 10.12.2001 recording 2,239 kilograms being so received, whereas the actual weight received was approximately 2,649 kilograms which was paid for as 2,239 kilograms invoiced at $37, coming to $82,843 and 410.35 kilograms paid for separately at $35 and coming to $14,362.25.
3He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 19887 dated 19.12.2002 recording 1,571 kilograms of rock lobster being received from the vessel 'Southern Leader', whereas the actual weight received and subsequently paid for was approximately 1,773 kilograms.
4He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 19893 dated 21.6.2003 recording 571 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 21.6.2003 personally signed Fish Receipt Docket No 42305 recording that 571 kilograms, whereas the actual weight received and subsequently paid for was approximately 678 kilograms.
5He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 19894 dated 28.7.2003 recording 982.1 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 28.7.2003 signed Fish Receipt Docket No 42307 recording 982 kilograms being so received, whereas the actual weight received and subsequently paid for, was approximately 1,398 kilograms.
6He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29601 dated 29.3.2004 recording 1,558.2 kilograms of rock lobster being received from the vessel 'Southern Leader' and on 30.3.2004 signed Fish Receipt Docket No 42319 recording 1,558 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 1,668 kilograms.
7He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29603 dated 21.6.2004 recording 731.5 kilograms of rock lobster being received from the vessel 'Southern Leader' and on 22.6.2004 signed Fish Receipt Docket No 42322 recording 731 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 1,220 kilograms.
8He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29604 dated 3.8.2004 recording 1,361.2 kilograms of rock lobster being received from the vessel 'Southern Leader' and on 4.8.2004 signed Fish Receipt Docket No 42324 recording 1,361 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 2,099 kilograms.
9He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29607 dated 22.1.05 recording 1,305.6 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 22.1.2005 signed Fish Receipt Docket No 42337 recording 1,300 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 1,614 kilograms.
10He signed the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29611 dated 23.4.2005 recording 1,004.4 kilograms of rock lobster being received from the vessel 'Southern Leader', whereas the actual weight received and subsequently paid for was approximately 1,184 kilograms.
11He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29612 dated 29.6.2005 recording 1,420 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 29.6.2005 he personally signed Fish Receipt Docket No 060801 recording 1,400 kilograms being so received, whereas the actual weight received was approximately 1,573 kilograms.
12He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 29613 dated 2.8.2005 recording 1,376 kilograms of rock lobster being received from the vessel 'Southern Leader' and on 2.8.2005 he personally signed Fish Receipt Docket No 060806 recording 1,376 kilograms being so received, whereas the actual weight received and subsequently paid for was approximately 1,650 kilograms."
In order to establish these transactions, the prosecution relied upon a substantial number of documents which it contended were admissible as business records pursuant to the Evidence Act 2001, s69.
The accused disputed the admissibility of many of the documents as business records. As to some of the documents, the accused had given the prosecution notice that he required the prosecution to call as witnesses the persons who had made representations contained in the documents. As the prosecution was unable to do so, the accused sought an order pursuant to the Evidence Act, s169(1)(c), that the documents not be admitted into evidence.
On 19 July 2011, I provided the parties with my reasons for rejecting the accused's contentions. The following are those reasons as edited.
Ruling as to business records on 19 July 2011
At all material times the accused was one of two shareholders in Union Seafood Pty Ltd. The other shareholder is Leang Ye Lin who has the same address as the accused and the same year of birth. At all material times that company was the sole shareholder in Southern United Seafood Australia Pty Ltd. Prior to September 2004, the name of that company was Southern Unite Seafood Australia Pty Ltd. In these reasons I will refer to that corporation as Southern United, regardless of the name that was applicable or used at the relevant time.
At all material times, Phillip Alan Stephens was a commercial fisherman. He undertook his fishing business in partnership with his wife, Judith G Stephens. They resided at Port Welshpool in Victoria. Their fishing vessel, the Southern Leader, is a steel boat, about 80 feet in length.
Particular 1
The documents with reference to this particular are:
· Quota Docket 12799 signed by Phillip Stephens dated 14 June 2001, which records a catch of 702 kilograms of lobster by the Southern Leader and includes a Processor/Fish Handler receipt for that catch (702.2 kilograms) signed for Southern United by James Banks and dated 15 June 2001. This receipt includes the following standard form declaration:
"I declare that:
· I have personally weighed and received the amount of Rock Lobster specified in Part B of this docket; and
· All details specified in Part B were filled out by me and are accurate and complete in every respect; and
· I have not received any rock lobster from this fisher at this unloading which are not recorded on this docket; and
· I am satisfied that all rock lobster I have received in accordance with the details recorded in Part B of this docket are no smaller that the minimum legal size and females are not in berry; and
· I have not made a false or misleading statement or made a misleading omission on this docket.
· Processor/Agent's Name printed Processor/Agent's Signature Date"
· A Fish Transfer receipt in respect of the above docket. The type of fish is RL (rock lobster) and the weight is 702. This receipt is signed for Southern United by James Banks and dated 15 June 2001. It includes the following standard form declaration:
"On this date (DECLARATION DATE),
I hereby declare that:Day Month Year · I am a person employed at the premises recorded in Part A of this Certificate on the date recorded on Part A of this Certificate and I have been instructed by the Licence Supervisor to complete Part B of this Certificate; and
· I am familiar with the instructions and information requirements for completing this Certificate; and
· I have personally confirmed that the details in Part A on this Certificate are accurate; and
· In completing Part B of this Certificate, I have filled in all the Receipt Details on the row to the left of my signature, and those details are accurate and complete in every respect; and
· All fish recorded on this Certificate by me are fish received, transported, processed or processed lawfully within and the terms of the Living Marine Resources Management Act 1995 (LMRMA) or of a Management Plan made under the LMRMA and all conditions of the relevant LMRMA licence or other authority relating to receival and to my entry have been complied with; and
· I have not made a false or misleading statement or made a misleading omission on this Certificate; and
· In signing this Certificate in the column headed Declarant's Signature I have read and I understand the declaration in Part B of the Certificate and I make the declaration accordingly".
· Pages from a Rock Lobster Catch Record Logbook in respect of lobster caught by the Southern Leader in the month of June 2001. The quantity is as above and it is signed and certified to be accurate and complete by Phillip Stephens as the supervisor of the vessel. It is also signed by Constable M P Massey as the checker of the catch on 14 June 2001.
· A Processor Return Form of Southern United for the month of June 2001 in respect of 702 kilograms of rock lobster. It has been signed by the accused and dated 15 July 2001.
· A Tax Invoice/Statement expressed to be from P A and J G Stephens to Southern United dated 15 June 2001 for $40,080 in respect of 835 kilograms of lobster. Attached to this invoice is a Commonwealth Bank Deposit Receipt which records the payment of the amount of the invoice to the account of P A and J G Stephens.
The Tax Invoice/Statement and the Deposit Receipt are from a folder made to hang in a filing cabinet. An identification tag has been attached to what is the top of the folder when in the hanging position. "Phil Stephens" has been written on one side of this tag and "P A and J G Stephens", has been written on the other side. This folder was provided to Constable Fogarty and Sergeant Peters on 8 August 2006, when they inspected the office and processing plant of Southern United at Richmond in Melbourne. The employee of Southern United who provided the folder to them was probably Lai Fong (Julie) Szeto.
The hanging folder contained many invoices expressed to be from P A and J G Stephens to Southern United covering a period in excess of six years. It appears from a quick perusal of the contents of the folder that the first invoice is dated 5 July 1999 and the last is dated 21 September 2005. In the main, the invoices bear notations that indicate that they have been checked and paid. The notations appear to have been made by employees of Southern United.
By letter dated 17 March 2011 ("the Notice"), the accused's solicitors wrote to the Director of Public Prosecutions in the following terms: "… we formally give notice that we request the Crown to call as witnesses on the trial, each and every person who made each and every previous representation relied upon by the Crown pursuant to Pt 6 of Ch 4 of the Evidence Act". The relevant sections of that Part are ss166 – 169.
Section 167(a) provides:
"167 Requests may be made about certain matters
A party may make a reasonable request to another party for the purpose of determining a question that relates to –
(a) a previous representation; … "
Section 166(c), (d) and (f) relevantly provide:
"166 Definition of request
In this Division,
'request' means a request that a party (the requesting party) makes to another party to do one or more of the following:
(c) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing;
(d) to call as a witness a specified person in whose possession or under whose control a specified document or thing is believed to be or to have been at any time;
…
(f) in relation to evidence of a previous representation, to call as a witness the person who made the previous representation; …".
Section 168 provides that a party who has been given written notice of the other party's intention to adduce evidence of a previous representation may only make a request to the other party relating to the representation if the request is made within 21 days after that notice. In this case the prosecution expressly takes no point about the time within which the Notice was given.
In reliance on the Notice, the accused requires the prosecution to call as witnesses the persons who made the representations in the Tax Invoice/Statement and the Deposit Receipt (1/18 and 18A). The prosecution is unable to identify these persons or the persons who made the representations in other documents to which I will refer. Accordingly, it cannot comply with the accused's request. It may be that some of the persons employed by Southern United, who are to be called as witnesses on the accused's trial, made one or other of the representations in question, but the prosecution is presently unable to establish that this is so. In this situation, the accused applies for an order that the Tax Invoice/Statement, the Deposit Receipt and certain other documents, not be admitted into evidence upon his trial.
The accused's application is made pursuant to s169(1)(c). Section 169 relevantly provides:
"169 Failure or refusal to comply with request
(1) If a party, without reasonable cause, failed or refused to comply with a request, the court, on application, may make one or more of the following orders:
…
(b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166;
(c) an order that the evidence in relation to which the request was made is not to be admitted in evidence;
…
(4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if –
…
(c) the person to be called as a witness is not available.
(5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account –
(a) the importance in the proceeding of the evidence in relation to which the request was made; and
(b) whether there is likely to be a dispute about the matter to which the evidence relates; and
(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and
(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and
(e) if the request relates to evidence of a previous representation, whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and
(f) …; and
(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and
(h) the nature of the proceeding."
For present purposes, I conclude that it can be inferred from the documents referred to that the accused conspired with Phillip Stephens to falsely declare that the quantity of rock lobster caught was 702 kilograms when, in fact, it was 835 kilograms. The Tax Invoice/Statement and the Deposit Receipt are central to the drawing of this inference. Accordingly, the question of the admissibility of these documents is of crucial importance to both parties.
In view of the importance of these documents to the prosecution's case, I find it difficult to envisage a situation in which I would be persuaded that the prosecution had reasonable cause for failing to call as witnesses those who made representations in the documents, if those persons were known to the prosecution. There is no suggestion that their identity is known to the prosecution and I do not consider that there has been any real prospect of their identity being established by the prosecution since the importance of these documents became apparent. More specifically, I do not consider that there has been any real prospect of the prosecution establishing their identity since the date of the Notice, 17 March 2011.
I turn to related matters. It is apparent, from the court books and the exhibits on the voir dire, that the prosecution proposes putting into evidence a substantial number of documents as business records. Against this background, it can be seen that the request made in the Notice is potentially oppressive and if pursued without refinement would have the capacity to undermine the objectives of the Evidence Act, s69, which provides for the admissibility of business records. See Atra v Farmers & Graziers Co–op Co Ltd (1986) 5 NSWLR 281 at 286. It is noteworthy that to a significant extent, the accused has not sought to rely on the Notice in an oppressive way. For the purposes of the application before me he has confined his request to about 22 specified documents. Nonetheless, difficulties remain with the revised approach adopted by the accused. Section 167 authorises "a reasonable request … for the purpose of determining a question that relates to … a previous representation". The determination of whether a request is reasonable involves a consideration of the question to be determined. The Notice does not detail what that question is, and I have not been provided with any supplementary notice that does so with regard to the documents in question. Much the same can be said in relation to the identification of the persons whom the accused wants the prosecution to call as witnesses. Speaking generally, the representations in contention on this hearing are contained in records of the accused's business, and many are handwritten or include handwriting. When interviewed by the police on 4 December 2006 in relation to some of the records, the accused said he could not identify the writing. For example, when shown a blue folder he volunteered that it was prepared "by a girl" but did not know which girl and said he would have to find out as "we've got a few girls here". At a later point he said he would have to look at the records to identify the handwriting on a document. I consider it likely that he knows or could establish the identity of most, if not all, of the persons concerned. The accused has not identified any person he requires to be called referrable to a representation. I note that s166(c) expressly caters for such a request.
That the accused has not identified any one of the persons he requires the prosecution to call as a witness, and has not detailed the question to be determined referrable to the maker of any of the representations in question, causes me to doubt that his request is reasonable for the purposes of s167. On balance I am unable to conclude that the prosecution's failure to call any of the unidentified witnesses involved is without reasonable cause.
Particular 2
The documents with reference to this particular are:
· Quota Document 19880, signed by Phillip Stephens and dated 10 December 2001, which records a catch of 2,239 kilograms of lobster by the Southern Leader and includes a Processor/Fish Handler receipt for that catch (2,239.6 kilograms) signed for Southern United by James Banks and dated 10 December 2001.
· A Fish Transfer receipt in respect of the above docket. The type of fish is RL (rock lobster) and the weight is 2,239. The receipt is signed for Southern United by James Banks and dated 10 December 2001.
· Pages from a Rock Lobster Catch Record Logbook in respect of lobster caught by the Southern Leader in the month of December 2001. The quantity is as above and it is signed and certified to be accurate and complete by Phillip Stephens as the supervisor of the vessel.
· A Tax Invoice/Statement expressed to be from P A and J G Stephens to Southern United dated 10 December 2001 charging $82,843 for 2,239 kilograms of lobster. The following has been written on the invoice: "14/12 paid chq #100175 $60,000
chq #001797 $22,843".
· A photocopy of a document headed with the name, address, phone and fax of Southern United. It is dated 10 December 2001 and details lobster received from "Phip Stephen". It categorises the lobster, primarily by age. The printed format of the document is the same as documents 98A, 108A, and 118A. The total weight of the lobster is 2,649.35 kilograms. This "Weight Document" as photocopied, includes a copy of a handwritten notation that "it is to be adjusted" and 2,239 are to be paid for @ 37 = $82,843. It also includes the same information in relation to the payment of that amount by two cheques as is written on the abovementioned Tax Invoice/Statement. This information appears to be written by the same hand on both documents. On the photocopy document itself, again in what appears to be the same hand, the following has been written: "2649.35 – 2239 kg = 410.35 kg @ 35 = $14,362.25". A further handwritten addition on the document as photocopied is some Chinese characters followed by "2239 kg". It is agreed, for the purposes of the voir dire, that these characters mean "report or declare".
· A Recipient Created Tax Invoice from Southern United to P A and J G Stephens dated 10 December 2001. It lists the same categories and weights of lobster that appear in the Weight Document, save that the name of one category has been changed from "Death" to "Frozen", the "Weak" category of 64.27 kilograms has been deleted and the weight of the "Over 2" category has been reduced. The total weight omitted is 439.82 kilograms. The total weight of lobster included is 2,209.35 kilograms. This invoice records that $82,843 was "paid today".
It can be inferred from these documents that in December 2001, the accused conspired with Phillip Stephens to falsely declare that the quantity of rock lobster he had caught was 2,239 kilograms, when, in fact, it was 2,649.35 kilograms.
The Weight Document is crucial to the drawing of this inference.
Counsel for the accused objects to the admission of the Weight Document. The prosecutor submits that it is admissible as a business record pursuant to the Evidence Act, s69. It was found by Constable Fogarty, together with other documents of the P A and J G Stephens partnership, when Constable Fogarty searched the residence of Mr and Mrs Stephens at Port Welshpool on 5 February 2006. Many documents in relation to their partnership were in the residence. Some were in cupboards and shelves, in what appeared to Constable Fogarty to be an office in the corner of the lounge room. Other documents were in archive boxes in a bedroom. The Weight Document appears to be a photocopy of a document that was run off via a fax machine. As the handwritten additions on the photocopy appear to be in the same hand as those on other Southern United documents, I assume that it is a document of Southern United, and that the photocopy was provided to a representative of the partnership.
Turning to s69, I am satisfied:
· that the Weight Document forms part of the records belonging to and kept by the partnership in the course of, or for the purposes of the business of the partnership; and
· that the representations contained in the Weight Document were made by persons who might reasonably be supposed to have personal knowledge of the facts asserted therein, or, on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted facts.
With regard to the non–admissibility of this document, counsel for the accused relied on some passages in a decision of Franki J in Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647. Whilst the legislation there under consideration is not identical to the Evidence Act, s69, it is sufficiently similar for decisions referable to it to be of assistance. The comments of Franki J relied upon by counsel were substantially addressed by Drummond J in Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595, at 598. Drummond J was there dealing with the question of whether a statement made in a letter sent to a business run by an entity referred to as Sailbay was admissible as evidence of the truth of a matter stated in that letter, by reason of it being a record of the business. At 598, Drummond J said:
"The letter, not being made by a Sailbay officer, cannot be said to be made in the course of either of Sailbay's businesses. More difficult is the question whether it was made for the purposes of either or both of those businesses. In Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 Franki J, in giving various rulings on the legislation here in issue, said (at 659):
'In general, a statement of fact in a letter from A to B found in the files of B is not admissible as a business record of B merely because it was filed and kept by B. This is because statements in the letter are not made in the course of, or for the purposes of, B's business.'
No–one, I think, would dispute what Franki J had to say there, particularly in view of his emphasis on what 'merely' appears. However, at the same page, his Honour went on to say:
'An invoice may be a communication and, if relevant, admitted on the basis that it is not evidence of the truth of its contents. In the case of an invoice filed in the records of B with the word 'Paid' or other note written on it, the whole does not become a business record of B merely because the word 'Paid' is written on it. The document should be treated as a communication, and any statement of fact in the note, if made by a qualified person, will be admissible as evidence of that fact under Pt IIIA of the Act.'
If his Honour is there to be taken as holding that a document made by a person outside the business and received by the business can never meet the requirements of s 7B(1) unless the truth of what is recorded in the outsider's document is acknowledged by some appropriate person acting on behalf of the recipient's business, with respect, I cannot agree with that.
There is nothing in the wording of s 7B(1)(a) that requires a document to be a document created within the business in question before it can qualify as a document that 'forms part of a record of (that) business'. Moreover, par (a)(iii) and (iv) of the definition of 'qualified person' in s 7A(1) of the Evidence Act show that documents generated by outsiders to a business, including outsiders in relationships more remote than contractual ones, can nevertheless meet all the requirements of s 7B(1), including s 7B(1)(a).
I have said that any need for acknowledgment of the reliability of the document is met by evidence that satisfies s 7B(1)(a). It is the evidence of the location of the document in a record system, formal or informal but a system nevertheless, kept by the business, that meets any such requirement of acknowledgment. There is, in my view, no justification for implying into the section some additional requirement for acceptance by the business of the accuracy of the facts recorded in a document made by an outsider, before it will be admissible.
However, the question of admissibility of a document under s 7B will depend in large part upon the nature of the document in question. There is a difference, it seems to me, between an invoice and a letter received by a business from an outsider. If the evidence shows that in the case of an invoice, for example, it was kept in a file of invoices sent by outsiders who have supplied goods and services to the business and that the invoice purports to record the supply of goods or services of a kind commonly used by the business in the course of its activities, that would, I think, be sufficient to satisfy s 7B(1)(b). Such a document could fairly be said to be made for the purposes of the recipient business although it was also made in the course of and for the purposes of the other business that supplied the goods or services listed in the invoice."
I agree with the approach taken by Drummond J, and consistent with it I conclude that the Weight Document, including the handwritten annotations made on it, was prepared for the purposes of both Southern United and the partnership. It is of the nature of an invoice. It contains information of quantities received from the partnership and of payments made to the partnership by cheques for one quantity, and a further amount due or paid to the partnership for another quantity. It is accordingly admissible as a business record of the partnership.
My finding with reference to the proposition that the prosecution has without reasonable cause failed to produce as witnesses the unidentified persons who made the representations contained in the Weight Document are the same as those that I made in relation to particular 1. I mention that because it emanated from Southern United, the accused is likely to be able to identify the persons involved.
Particular 3
The documents with reference to this particular are:
· Quota Docket 19887 signed by Phillip Stephens and dated 19 December 2002, which records a catch of 1,571 kilograms of lobster by the Southern Leader and includes a Processor/Fish Handler receipt for a catch of that amount on that date signed for Southern United by the accused. It is also signed and dated by Acting Sergeant M P Massie.
· Pages from a Rock Lobster Catch Record Logbook in respect of a catch of the above quantity by the Southern Leader and signed by Phillip Stephens as the supervisor of the vessel. A note on one of the pages that on 19 December 2002, an inspection was performed aboard at Killiecrankie Bay by Acting Sergeant Massie, and all was in order.
· A Tax Invoice/Statement expressed to be from "Phil Stephen" to Southern United dated 19 December 2002 for $59,698 in respect of 1,571 kilograms of lobster. On this invoice is a handwritten note as to the payment of the amount due on 31 December by way of a cheque, the number of which is recorded.
· A handwritten note on a page in a loose leaf clip lock folder to the effect that on 20 December "Phil Stephen" delivered 1,773 kilograms of lobster. The quantities are broken down into categories.
· A Recipient Created Tax Invoice from Southern United to P A and J G Stephens dated 20 December 2002, which records that $59,698 had been paid that day for 1,571 kilograms of lobster, broken down into categories. The quantities of lobster listed in the invoice are the same as those from the page in the loose leaf folder, save that the quantities of four of the categories have been reduced.
From these documents it can be inferred that the accused conspired with Phillip Stephens to falsely declare that the quantity of rock lobster he caught was 1,571 kilograms, when in fact he caught 1,773 kilograms. The loose leaf folder page is crucial to drawing this inference. The prosecutor says it is admissible as a business record of Southern United.
On 4 December 2006, Constable Fogarty and Sergeant Peters attended the office of Southern United. Amongst the documents they seized were a loose leaf clip lock folder ("the Folder"), and a "Flinders" series bound diary ("the Diary"). They were located in a metal two–door cabinet in the centre of the office, together with a number of other records of Southern United. The Folder contains pages detailing quantities of lobster, king crab, abalone, and no doubt other fish received from specified clients on dates between, it seems, 6 December 2002 and 29 June 2003. It contains in the order of 60 pages and 500 entries. Similar entries are recorded in the Diary, but in a more sporadic manner. Some pages in the dated portion of the Diary, and five pages at the end of the Diary include a number of entries for dates between 1999 and 2003. A few pages in the dated portion at the commencement of the Diary appear to relate to other matters of relevance to Southern United, such as the phone number of a driver with a full licence and the phone numbers of other apparent employees.
I conclude that the Folder and the Diary form part of the records belonging to and kept by Southern United in the course of, and for the purposes of its business, and that they contain representations recorded in the course of, and for the purposes of the business. I also conclude that they were made by persons who had or might reasonably be suspected to have personal knowledge of the facts asserted therein, or, on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of those facts. I am accordingly of the view that the particular Folder entry in question is admissible as a business record of Southern United.
For much the same reasons as I have given in relation to particular 1, I am not satisfied that the prosecution has failed, without reasonable cause, to call as a witness the person who made the particular entry.
Particular 4
The documents with reference to this particular are:
· Quota Docket 19893, signed by Phillip Stephens, dated 21 June 2003, which records a catch of 571 kilograms of lobster by the Southern Leader, and includes a Processor/Fish Handler receipt for that catch, signed for Southern United by Duc Pham, and dated 21 June 2003. Constable 1587, the number of Constable M P Massie, has signed a note at the foot of the document to the effect that it was checked on 20 June 2003.
· A Fish Receipt in respect of the above docket, the fish type being RL and the weight 571. This receipt is signed for Southern United by the accused and dated 21 June 2003.
· A page from a Rock Lobster Catch Record Logbook of the Southern Leader which records a catch totalling 678.6, but also contains the figure 571, together with two different cash amounts, one being $25,124 and the other being $4,411.60.
· A page in the Folder that records that on 21 June 2003, "Phil" apparently delivered quantities of lobster in different categories totalling 673.65 kilograms.
· A copy of one capture or printout of a computer generated spreadsheet headed "Southern Unite Seafood Confidential", dated "210603". It records, referrable to "Phil Steven", the same quantities by category as the entry in the Folder.
· A Tax Invoice/Statement expressed to be from "Phip Stephen" to Southern United dated 21 June 2003 for $25,124 in respect of 571 kilograms of lobster, which includes a notation to the effect that it was paid on 1 July, together with the cheque number.
· A Recipient Created Tax Invoice from Southern United to P A and J G Stephens dated 21 June 2003 which records that that day $25,124 was paid for 570 kilograms of lobster. The quantities by category of the lobster are the same as those specified in the above documents, save that one quantity has been reduced from 308.76 kilograms to 206.11 kilograms.
Counsel for the accused submits that the entry on the page from the Folder, the copy of the spreadsheet, and the page from the Rock Lobster Catch Record Logbook are inadmissible. The sole ground relied on by the prosecutor for their admission is s69, that is, that they are business records of Southern United.
I conclude that the entry on the page from the Folder is admissible for the same reasons that I have given in relation to a similar entry under particular 3.
I turn to the copy of the spreadsheet. On 8 August 2006, Constable Fogarty and Sergeant Peters attended the premises of Southern United. An employee, Julie Szito, directed them to archived records of the business in the ceiling above the factory floor. One room also contained a large compactus filing system. There were between 30 and 50 boxes of archived records. The records in the boxes included computer generated printouts of spreadsheets stapled together in monthly batches. One of the batches had the word "inventory" written on it. I conclude that each of these batches forms part of the records belonging to or kept by Southern United in the course of, or for the purposes of its business, and that they contain representations made or recorded in the course of, and for the purposes of the business. I also conclude that they were recorded by a person who had, or might reasonably be supposed to have had, personal knowledge of the facts asserted therein on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted facts. I am satisfied that these documents are admissible as business records of Southern United.
In this instance, counsel for the accused has objected to the admissibility of the relevant record contained in the Rock Lobster Catch Record Logbook. The record in question is the last of numerous similar records contained in a logbook of the Southern Leader. I conclude that it forms part of the records belonging to or kept by the partnership in the course of, and for the purposes of its business, and that the relevant page is a representation made or recorded in the course of, and for the purposes of the business. I conclude that it was completed by a person who had, or might reasonably be supposed to have had, personal knowledge of the facts asserted in it, or on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of those facts. It is admissible as a business record of the partnership.
For substantially the same reasons that I have also given in relation to the earlier particulars, I am not satisfied that the prosecution has, without reasonable cause, failed to call as a witness the person or persons who made the representation or representations in the documents in question. With regard to the page from the logbook, I note that a number of the pages in it appear to have been completed in the same hand as the relevant page. It is apparent from the Quota Dockets that the accused and the partnership were commonly involved in the joint preparation of documents. I consider it likely that the accused knows or could establish the identity of the person concerned.
Particulars 5 to 12
With respect to particular 5, counsel for the accused has objected to that which is recorded on a page in the Diary and a related spreadsheet page. With respect to the balance of the particulars, the objection is confined to the spreadsheet page relied on. The nature and content of the documents relied upon by the prosecution for the purposes of each of these particulars, and the circumstances in which they were found, is sufficiently similar for me to say that for the reasons I have already given, I reject counsel for the accused's objection to the admissibility of the particular documents under challenge.
In the course of the trial there was a dispute between the parties about the duties the prosecution relied upon for the purposes of count 1 of the indictment. The following are the reasons that I published referrable to that dispute on 26 September 2011.
Ruling about duties given on 26 September 2011
The parties are in dispute as to whether the following particulars to count 1 in the indictment are duties performed by the Minister for the time being administering the Living Marine Resources Management Act and the Fisheries (Rock Lobster and Giant Crab) Rules made thereunder, or the Secretary of the Department responsible to the Minister in relation to the administration of this legislation. The particulars are:
"(a)Determining and setting the total allowable catch for the Tasmanian Rock Lobster Fishery;
(b)Allocating the total allowable catch for the Tasmanian Rock Lobster Fishery to Tasmanian Rock Lobster fishing licence holders;
(c)Ensuring that the holder of Tasmanian Rock Lobster fishing licence who takes in excess of his quota has a deduction made from any subsequent quota unit balance;
(d)Determining whether to renew a Tasmanian Rock Lobster fishing licence or apply to a magistrate to cancel or suspend a Tasmanian Rock Lobster fishing licence; and/or
(e)Carrying out any examination and necessary inquiries to ascertain if any provisions of the Act or any conditions imposed under this Act have been complied with."
Counsel for the accused submits that only particular (c) and the first part of particular (d) are duties of the Minister or Secretary.
The conspiracy that is the subject of count 1 is a conspiracy to defraud by agreeing by dishonest means to deflect a public officer from the performance of his or her public duties.
The element of the conspiracy that has been the subject of submissions before me is the deflection of a public officer from the performance of his or her public duties.
As to this element, in broad terms, it would be sufficient for the prosecution to allege that the conspiracy was to deflect the public officers responsible for administering the legislation that governs the rock lobster fishery from performing their duties, as outlined, under that legislation. It is not necessary to prove that the conspirators had in mind deflecting a specifically identified public officer from performing a specific public duty, identified by reference to a particular provision in the legislation.
As observed by Blow J in Tasmania v Lin [2011] TASSC 14, at par[14], in cases concerning the species of fraud in question, the words "public duty" are used to refer to an executive and administrative function of a public nature.
Consistent with this observation, the success of the prosecution is not dependent upon establishing that the purpose of the conspiracy was to deflect a public officer in the performance of an express statutory duty of his or her office, as distinct from an executive and administrative function of the office which is of a public nature. By way of example, I mention that where it is alleged that a public officer has sought or received a bribe or the like on account of anything done "by him in discharge of the duties of his office", that phrase is construed widely as extending to any function of the office. On this basis it has been held that where the public office is such that its holder is in a position to wield influence in matters of a particular kind, the wielding of that influence is a discharge of the duties of the office, Herscu v R (1991) 173 CLR 276, Brennan J at 287, and see Mason CJ, Dawson, Toohey and Gaudron JJ at 282 – 284. It seems to me that a similarly wide approach should be taken to the issue of whether an object of a conspiracy is to deflect a public officer from the performance of his or her public duty. In this regard I am conscious of the approach taken by Underwood J (as he then was) in directing the jury on the trial of Georgiadis & Ors. That direction is the subject of the decision of the Court of Criminal Appeal in Georgiadis v R (2002) 11 Tas R 137.
In the case under consideration, the indictment does identify the public officers alleged to have been deflected from performing their public duties. They are the Minister and the Secretary. The particulars to count 1 also detail those duties. They are as set out in the opening paragraph of this ruling.
Confining myself to this issue as it has been argued before me, I conclude that:
· Particular (a). Pursuant to the Act, s94(2)(a), the Minister may set the total allowable catch for the fishery.
· Particular (b). The effect of the Act, ss96 and 98C(1) and the Rules, r43(2), is that the Minister is subject to a duty to allocate the total allowable catch for rock lobster by rock lobster quota units to the holders of rock lobster fishing licences.
· Particular (c). Pursuant to the Rules, r49, the Minister is subject to a duty to ensure that the holder of a rock lobster fishing licence who takes in excess of the quota has a deduction made from any subsequent quota unit balance.
· The first part of particular (d). Pursuant to the Act, ss81 and 98C(1), the Minister is subject to a duty which requires that before renewing a licence the Minister be satisfied as to whether: the applicant has complied with the conditions of the licence over the previous five years; has not been convicted of any offence under the Act; and is not disqualified from holding a licence.
· The second part of particular (d). Pursuant to the Act, s90(1), the Secretary may apply to a magistrate for an order to suspend or cancel a licence.
· Particular (e). Pursuant to the Act, s194, a fisheries officer, which term includes the Secretary, may carry out any examination and inquiry considered necessary to ascertain if any provision in the Act or a corresponding law or any condition imposed under the same has been complied with.
In the context of the crime in question, there is no relevant difference between a duty to act, such as those that underpin particulars (b), (c) and the first part of particular (d), and an entitlement to act, such as those that underpin particulars (a), the second part of particular (d), and particular (e). When the Minister or the Secretary act as they are entitled to under the Act or Rules, they are exercising responsibilities conferred on them by the Act or Rules, and as such performing their public duties under the same. So whilst an entitlement or authority vested in the Minister or the Secretary under the Act or Rules may not impose a duty as such, when the Minister or Secretary acts on that entitlement or authority, he or she is performing a duty under the Act.
For these reasons I conclude that the matters detailed in particulars (a) to (e) to count 1 of the indictment accurately reflect duties performed by the Minister and the Secretary under the Act and the Rules, and I will direct the jury accordingly. I note that a duty imposed on the Minister by the Act, s18, which has not been mentioned, is a duty to ensure that the Act is administered in a way which promotes the sustainable management of living marine resources. Rock lobsters are a living marine resource.
Ruling on alternative verdicts given on 29 September 2011
At the conclusion of the trial an issue arose as to whether the jury could deliver a verdict on the alternative charge of conspiracy to commit a crime without delivering a verdict of not guilty on the first charge of conspiracy pleaded in the indictment, that of a conspiracy to defraud by using dishonest means to deflect a public officer from the performance of his or her public duties. As already explained, both charges were pleaded in the indictment. The course adopted by the drafter of the indictment reflected that which was commended by Crisp J in R v Vallance [1960] Tas SR 51, at 104. In essence, the indictment presented the jury with alternative charges of similar gravity. Whilst the second pleaded charge was expressed to be an alternative charge, it was not an alternative charge within the meaning of that term as used in the Code, s332(2), which provides:
"(2) Where pursuant to this chapter a person may, on indictment for any crime, be convicted of any other crime it is intended that, if the jury find him not guilty of the crime with which he is charged, he may be convicted of that other crime if it is established by the evidence to have been committed by him."
The alternative charge was not before the jury by reason of the application of the chapter referred to in s332(2), but because it was pleaded as an alternative charge in the indictment. Had the former been the case, it would have been necessary for the jury to have found the accused not guilty on the charge pleaded in the indictment before it could have convicted him on an alternative charge that was open pursuant to the chapter referred to in s332(2). See Stanton v R (2003) 77 ALJR 1151, pars[17] to [25].
Where charges pleaded in the alternative in an indictment are of similar gravity, the jury should be asked whether they find the accused guilty on either charge and if so; the particular charge should be identified by the jury, the verdict taken on that charge, and no verdict taken on the other charge. See R v Seymour (1954) 38 Cr App R 68, at 72. Ultimately, I ruled that this was the course that should be taken in this case.
The accused was found guilty on the charge of conspiracy to commit a crime, and no verdict was taken on the other charge.
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