Tasmania v Lee
[2006] TASSC 58
•7 July 2006
[2006] TASSC 58
CITATION: Tasmania v Lee [2006] TASSC 58
PARTIES: TASMANIA
v
LEE, David Wei Meng
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: 375/2003
DELIVERED ON: 7 July 2006
DELIVERED AT: Hobart
HEARING DATE: 29 June 2006
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Evidence – Matters relating to proof – Prima facie case or case to answer – Generally – Test to be applied in a circumstantial case.
Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323, applied.
Criminal Code 1924 (Tas), s4.
Living Marine Resources Management Act1995 (Tas), s264(1).
Aust Dig Criminal Law [442]
Criminal Law – Evidence – Matters relating to proof – Prima facie case or case to answer – Generally – Basis for submission – Evidence relied on by Crown not supporting a crime known to law – Construction of the Criminal Code 1924 (Tas), s4 – Application where crime probable consequence of unlawful purpose occurs before and after common intention formed.
McAuliffe v The Queen [1995] 183 CLR 108; Osland v The Queen (1998) 197 CLR 316; Beckwith v The Queen (1976) 135 CLR 569; R v Grant [1975] 2 NZLR 165, referred to.
The Queen v Barlow (1996 - 1997) 188 CLR 1, applied.
Criminal Code 1924 (Tas), s4.
Living Marine Resources Management Act1995 (Tas), s264(1).
Aust Dig Criminal Law [442]
REPRESENTATION:
Counsel:
Crown: D G Coates SC and M S Wilson
Accused: P Tree SC and C J Gunson
Solicitors:
Crown: Director of Public Prosecutions
Accused: Zeeman Kable & Page
Judgment Number: [2006] TASSC 58
Number of paragraphs: 36
Serial No 58/2006
File No 375/2003
TASMANIA v DAVID WEI MENG LEE
REASONS FOR JUDGMENT TENNENT J
7 July 2006
These are my reasons for a decision given orally on 3 July 2006.
At the close of the prosecution case, counsel for the accused submitted that the accused had no case to answer. His application was made on two bases. Firstly he submitted that the evidence relied on by the Crown simply did not support the existence of a crime known to law. Secondly he submitted that no reasonable jury properly instructed and accepting the Crown case at its highest could convict the accused.
The accused was charged with five counts of illegal possession of fish contrary to the Living Marine Resources Management Act 1995 ("the Act"), s264(1). It was not alleged that the accused at any time physically had possession of any fish in Tasmania. Instead the Crown relied on the Criminal Code 1924 ("the Code"), s4, to inculpate the accused in the crime. That section provides:
"4 Where 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose a crime is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the crime."
The Crown alleged that the accused formed a common intention with Ho and/or Barrett to prosecute an unlawful purpose, namely the supply by Ho and/or Barrett of abalone from Tasmania to Queensland not "recorded in or accompanied by the appropriate documentation as required by the Living Marine Resources Management Act 1995…". It further alleged that, in the prosecution of that unlawful purpose, the crime of illegal possession of fish pursuant to the Act, s264(1), was committed in Tasmania and that the commission of that crime was a probable consequence of the prosecution of the unlawful purpose. Thus it was argued the accused was deemed to be guilty of the crime of illegal possession of fish.
First basis of application
This submission was directed to the Crown's reliance on the Code, s4, to sheet home criminal responsibility to the accused for a crime committed by others in Tasmania, namely illegal possession of fish.
Counsel for the accused submitted that a proper construction of the Code, s4, was that the offence said to be "a probable consequence of the prosecution of the unlawful purpose" was required to be committed wholly after the formation of the common intention. In this case, the crime of illegal possession of fish, having regard to the evidence, was committed by Ho and/or Barrett before any common intention was said to have arisen even though it is conceded it was a crime which continued after. He submitted that there was no intention on the face of the section to encompass liability for a continuing crime.
Counsel submitted that the section could not be construed as encompassing such a continuing crime unless additional words were added to refer to a continuing crime. In their absence the section should be construed strictly. An appropriate reading of the word "committed" or "commission" in s4 was that it restricted the section to criminal liability for a crime first committed after the common unlawful intention had been formed.
Counsel made a number of submissions to support his contention. He firstly outlined some analogous scenarios from other legislation where the offences of supply and possession both existed. He submitted that if the Crown's contention was correct, then there was little point in having the crime of supply at all. His illustration of that was, for example, that if a person requested the supply of an unregistered firearm from someone who already had such a firearm in his possession, then at the moment of request the person making the request would instantly be guilty of the crime of possession. If that were the proper construction of the effect of s4, there would be little purpose in having the crimes of both supply and possession.
The evidence in this matter was that Ho and/or Barrett had possession of abalone illegally prior to the formation of any common intention with the accused, whether for an unlawful purpose or otherwise. An agreement was then entered into for Ho and/or Barrett to supply a quantity of dried abalone from Tasmania to the accused in Queensland. From the abalone that Barrett and/or Ho had, they or their agents packaged up the quantity agreed to be supplied and then delivered it to the premises of a removalist in Tasmania for transport by road to Queensland. Ho and/or Barrett therefore continued to possess abalone illegally in the form of the shipment put together for the accused at least up until that shipment passed out of their hands in Tasmania. In the case of all five shipments the accused received them and there was no dispatch docket or fish transfer certificate as required under the Act.
Counsel for the accused referred to a number of authorities to support his contention. The first was McAuliffe v The Queen [1995] 183 CLR 108 which was an appeal dealt with by the High Court against convictions of two brothers for murder. The appeal related to the direction given by the trial judge as to common purpose. Counsel referred to the discussion of the doctrine of common purpose appearing at 13 and 14 of the joint judgment of Brennan CJ, Deane, Dawson, Toohey and Gummow JJ. The Crown did not dispute the statement of the law there appearing.
However, counsel for the accused emphasised the prospective nature of the wording used. With respect, the court was dealing with a case where the only matter being considered was a crime committed after a common intention was said to have arisen. The statement of the law was made in the context of what the court was considering and cannot be said to have addressed in any useful way the issue we are now considering.
The second authority referred to was Osland v The Queen (1998) 197 CLR 316, another decision of the High Court in an appeal against a conviction for murder. At par24 of the joint judgment of Gaudron and Gummow JJ, their Honours set out part of the passage from McAuliffe's case to which counsel had already referred. They went on at par27 to deal further with the doctrine of common purpose. Counsel referred to this case as another example of the prospective nature of the statements made. With respect again, the court was dealing with a crime clearly and only committed after the formation of a common intention and the case provides little, if any, assistance as far as the very specific issue being determined here.
Counsel also referred to statements of McHugh J in the same case appearing at pars72, 75, 79 and 93 about the doctrine of common purpose. He submitted they contained powerful statements of principle but conceded they did not address the issue being considered in the present case. Reference to the statements appeared to have been made for the purpose of highlighting the prospective nature of the application of the doctrine, although with respect I am not persuaded they were other than statements made in the context of the case being considered.
Having referred to those and other cases, which also did not assist greatly with the specific issue being dealt with here, counsel returned to the issue of statutory construction, that is the meaning to be given to the words "committed" or "commission" in section 4. Did they encompass a continuing offence? He submitted that was not the intention of the legislature and being criminal legislation it ought to be construed strictly and not in a way such that it extended criminal responsibility for an accused.
Counsel submitted that a factor which supported this was that for some reason prosecutorial authorities were prosecuting the accused in Tasmania attempting to use an extended operation of the law in this state when they could have more easily prosecuted the accused in Queensland under legislation which mirrored Tasmanian law. I do not accept that as a relevant factor. Where and how an accused is prosecuted is a matter for prosecutorial authorities and the fact that such authorities have chosen one method over another can have little bearing on the construction of a statute.
Counsel for the Crown referred to the decision of the High Court in The Queen v Barlow (1996 - 1997) 188 CLR 1. In that case the court was considering an appeal from a conviction for murder in Queensland. The court considered the meaning of s8 of that State's Criminal Code, which is in almost identical terms to our s4. Queensland's s8 refers to the term "offence" as opposed to "crime" in s4 in Tasmania.
In the joint judgment of Brennan CJ, Dawson and Toohey JJ at 10, their Honours said:
"In the light of these provisions, 'offence' in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made. It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act … ."
Their Honours went on, at 13 - 14, to say:
"As the operation of s 8 is limited to deeming the secondary party to have done the act or to have made the omission which renders the principal offender liable to punishment only in so far as the doing of an act of that nature or the making of an omission of that nature was a probable consequence of prosecuting their common unlawful purpose, the state of mind of the secondary party may be determinative of the extent of that party's criminal liability in either of two ways. First, it determines the content of the 'common intention to prosecute an unlawful purpose'. That common intention prescribes any restriction on the nature of the act done or omission made which the secondary offender is deemed to have done or made. The restriction may be referable to the circumstances in which it is done, the result it effected or the state of mind with which the principal offender did it. Once s 8 does its work of deeming the secondary party to have done the act or to have made the omission which the principal offender did or made in so far as that act or omission is of a nature covered by the parties' common intention, the state of mind of the secondary party may again require consideration. If, at the time that the act was done or the omission was made, the secondary party had a state of mind which, in combination with an act or omission of the nature which s 8 deems him to have done or made, renders him guilty of a more serious offence than the offence of which the principal offender is guilty, the secondary party is liable to conviction for the more serious offence. Thus the mastermind who, having greater knowledge of the circumstances or the likely result of a minor criminal offence which he and a comparatively innocent principal offender agree to commit, or who has an evil intent not shared by the principal offender, will be liable according to his (the secondary party's) state of mind, although the common plan was merely to commit the minor offence."
Having referred to those passages counsel for the Crown submitted that what a court does when applying s4 is to look at the conduct of the parties in planning for the unlawful purpose and then look at what conduct was a probable consequence of that plan so as to make the principal offender liable for punishment. The Court then determines whether an accused can be found guilty of that by reference to the section. In the present case Ho and/or Barrett were liable for punishment for transporting the abalone without a dispatch docket. That occurred after the alleged formation of the common intention. They may very well have had possession of the same or other abalone without proper documentation before that and at that point been liable of punishment for the crime of illegal possession of fish. However if they had been intercepted on the way to the removalist's premises, and then charged, it would not have been a defence that they had the fish illegally at some previous date.
In his submissions in reply, counsel for the accused, although not having referred to the case in his opening submissions, relied on Barlow's case (supra). His submission was that the court had defined the term "offence" for the purpose of the Queensland legislation as an act or omission. There was no reason why that definition should not apply equally to the term "crime" in Tasmanian legislation. Since, he said, the crime in this case said to have been a probable consequence of the unlawful purpose was one of possession, and possession was a state of affairs and neither an act nor an omission, then the Code, s4, could not apply. To interpret it as so applying, created a new offence. Since there was nothing to suggest that was the legislature's intention, the section should be interpreted to benefit the accused and his no case to answer submission must succeed.
Counsel for the accused took the Court to two further authorities to support this submission. The first was Beckwith v The Queen (1976) 135 CLR 569. That case dealt with a charge under customs legislation of attempting to have possession of a narcotic substance said to have been laid pursuant to s237 of the relevant legislation which provided that "Any attempt to commit an offence against this Act shall be an offence against this Act punishable as if the offence has been committed." Counsel submitted this section expanded those to whom criminal responsibility could be attached in much the same way as did s4 of the Code.
The court in that case had to consider whether the provisions of the relevant legislation allowed for a person to be charged with an attempt of a particular substantive offence of possession of a narcotic substance. At 575, Gibbs J discussed submissions by counsel as to the meaning of the term "possession" and a New Zealand case to which counsel referred, that of R v Grant [1975] 2 NZLR 165, where the court made certain statements about what possession was in the context of New Zealand legislation. Further, at 575, Gibbs J said:
"The appellant sought to apply similar reasoning to ss 233B(1)(ca) and 237. It would not be right to express any view as to the correctness of the decision in Reg v Grant (1975) 2 NZLR 165, which may depend on the particular words of the New Zealand statutes. However, if a legislature provided in terms that it should be an offence to attempt to have possession of a narcotic there would in my opinion be no difficulty in giving effect to the intention so expressed. An act which would constitute an attempt to get possession of a narcotic would in those circumstances also be regarded as constituting an attempt to have possession of the narcotic."
Gibbs J then went on to say at 576 - 577 and then at 578:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563, at pp 567 - 568; Craies on Statute Law, 7th ed (1971), pp 529 - 534. The rule is perhaps one of last resort. In the case of the present statute the two considerations to which I have referred do in my opinion raise a real doubt as to the meaning of the enactment. It is doubtful whether the legislature intended to extend the provisions of s 237 to those of s 233B when the effect of such an extension would be that some words of the latter section would be surplusage and that an important defence available to those charged with committing the offence itself described in s 233B (1) (ca) would be denied to those charged with attempting to commit that offence. It cannot in my opinion be said to be clear that a construction which would render s 237 applicable to s 233B is better calculated to give effect to the apparent intention of the legislature than one which would render that section inapplicable.
…
In the end, I have reached the conclusion that the considerations to which I have referred, and which suggest that s 237 is not intended to apply to s 233B, have not been outweighed by any indications of a contrary intention. The effect of the provisions at the least remains doubtful and that doubt should be resolved in favour of the liberty of the subject. For the reasons given, I find myself unable to agree with the conclusion which was reached by the Court of Appeal as to the effect of these difficult provisions. I consider that the indictment did not charge an offence known to the law."
Counsel submitted that in the same way that Gibbs J found in Beckwith's case that the section was ambiguous, so too there were competing arguments as to the interpretation of s4. Since there was no indication the statute intended to encompass passive acts or rather passive consequences of acts any ambiguity should be resolved "in favour of the liberty of the subject".
Conclusion on the first basis for accused's application
I am not persuaded that the resolution of this issue is simply a matter of following the authority of Barlow's case (supra) as counsel for the accused submitted. With respect, counsel's submission in regard to that was somewhat simplistic and I suspect opportunistic having regard to the timing of when it was made. The High Court did indeed hold, by reference to Queensland legislation, that the word "offence" should be understood to refer to an act done or omission made. With respect, however, it is not possible to simply extract that specific finding as counsel has done, marry it with some observations about possession from other cases, and then submit that Barlow's case is High Court authority for the proposition that s4 was never intended to encompass continuing crimes. The finding was made in a particular context and a reading of the passages to which both counsel referred shows that the court went beyond that specific finding in considering the operation of the legislation they were dealing with.
In so far as counsel for the accused contends for the proposition that an offence, and hence a crime, can only be an act or omission, possession is a state of affairs and not an act or omission and therefore s4, which refers to the commission of a crime, could not apply to a charge of possession, I reject it. The charge in the present case is one of illegal possession of fish. The Act, s264(1), provides that a person guilty of that is guilty of an indictable offence. The definition of "crime" in the Code is that it means "an offence punishable upon indictment". The Code and the Act have therefore expressly provided for the offence of possession in the particular circumstances alleged here to be a crime.
In this case the unlawful purpose alleged by the Crown is one of supply of abalone without a dispatch docket. The Code, s4, then requires the Court to consider whether in giving effect to that purpose the crime of illegal possession was committed. The crime of illegal possession of fish was first committed by Ho and/or Barrett when they came into possession of fish at Barrett's Richmond factory. It was also committed when they took a quantity of such fish and delivered it to a removalist for delivery to Queensland. The commission of the crime at that point was to give effect to the purpose of supply. The fact that Ho and/or Barrett may have committed the crime before does not detract from the fact that they committed it after forming an intention to supply.
I am not satisfied that in any way this is extending the meaning of s4 such as to create a new offence to the detriment of the accused. This argument will fail.
Second basis for argument
As counsel for the accused described it, this was the more traditional basis for a no case to answer submission. Both counsel addressed the argument by reference to evidence which related to what was the principal issue in this trial, and that is whether there was evidence the accused was a party to a common intention to prosecute an unlawful purpose (as opposed to a lawful one, simply the supply of legal abalone). While both counsel referred to Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323, they interpreted it somewhat differently. Counsel for the accused referred to a passage in the judgment of King J appearing at page 327:
"I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence. "
Counsel for the accused emphasised the last words of that passage, namely "could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence".
He then referred to four aspects of the evidence and submitted that each of these provided hypotheses consistent with the innocence of the accused which the Crown had not negatived and, since they had not, there could be no case to answer. For the purpose of this application I do not examine each of those and determine that a jury might accept that each had an innocent explanation. I do not because I do not accept that an examination of the evidence in that way is what is required of a court in circumstances such as the present. The particular passage to which counsel for the accused referred in the judgment of King J in the DPP No 2 case was not the full extent of his summary of the relevant principles. Starting at 326, King J said:
"The application of the basic principle, as enunciated in Prasad, to a case of circumstantial evidence was dealt with in the following passage:
'The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct `evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?'
It follows from the principles as formulated in Bilick in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence: A-G's Reference (No 1 of 1983) [1983] 2 VR 410; Thorp v Abbotto (1992) 34 FCR 366; 59 A Crim R 208. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
There was some criticism before us of the concept of reasonableness in the Bilick test and reference was made to R (1991) 57 A Crim R 39. I do not read that case as deciding that there can be a case to answer on circumstantial evidence which is incapable of producing in a reasonable mind a conviction of guilt beyond reasonable doubt. If the evidence is incapable of producing that state of mind, it is not capable in law of proving the charge. I note that Lee CJ at CL speaking for the Court quoted with approval a passage from the judgment of Jordan CJ in Crooks (1944) 44 SR (NSW) 390 in which Jordan CJ quoted from Ross (1922) 30 CLR 246 at 255 - 256 as follows:
'If there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the jury and for them alone ... ' [Emphasis mine.]"
There then followed the passage counsel for the accused initially referred to. It is clear from the statements of principle set out by King J that the role of this Court is not to choose between inferences which are reasonably open to the jury. It is not to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. The Court's role is to determine the matter on the basis that the jury will draw such of the inferences which are reasonably open as are most favourable to the Crown.
Counsel for the Crown submitted that a common intention to carry out an unlawful purpose could be implied from the evidence. He then identified evidence from which he submitted a reasonable jury could, considering that evidence as a whole, draw only that conclusion. The matters identified were:
- that, initially, abalone was being sent with dispatch dockets by air;
- that generally there were invoices;
- that the abalone shipments were worth thousands of dollars;
-then, on five occasions between August 2001 and March 2002 shipments were sent by road from Tasmania without dispatch dockets;
- on four of those occasions false names were used for the consignor and/or consignee;
-on four of those occasions the shipments were sent to an address other than the accused's business premises;
- on all occasions the shipments were received by the accused;
-there were telephone calls involving the accused about the arrangements for sending with false names and payment for the deliveries in cash;
-Constable Warrington told the accused of the requirements for a dispatch docket and the accused acknowledged he knew of the requirement and had for some time. This discussion was in November 2001;
-Inspector Cerritelli spoke to the accused when the first shipment was delivered and the accused expressed no surprise he was receiving a consignment of furniture from Tasmania delivered to the store area of his business premises. There was no request for a dispatch docket or any apparent acknowledgement that the consignment was in fact abalone;
-the accused knew it was an offence in Queensland not to have a dispatch docket with a consignment of abalone;
-at no stage in any phone conversation did the accused say, well I need a dispatch docket, or raise a concern about the theft of a consignment or suggest, given his complaint about delay in receiving stock, that it would be quicker to pay a bit extra and get it sent by air; and
-the accused lied about the source of the removalist boxes found at his business in April 2002 and the use which had been made of them.
Counsel for the Crown submitted further that it did not matter what the accused thought the reason for delivery by road with false names was, that is tax evasion or saving money. If there was evidence from which a reasonable jury could infer that the accused was party to an agreement to send abalone to him without a dispatch docket, the charge would be made out.
With respect I accept the submissions made by counsel for the Crown. There is evidence before the Court from which a reasonable jury, taking the evidence presented at its highest and drawing inferences most favourable to the Crown, could infer that the accused was a party to an agreement to send abalone without a dispatch docket. Given the admissions in this case about the supply in fact being unlawful, that Ho and/or Barrett were guilty of the crime of illegal possession of fish, and given the findings I have already made about the interpretation of s4, there is clearly sufficient evidence to put to a jury.
In all the circumstances, the submission of counsel for the accused that the accused has no case to answer is rejected and the accused will be put to his election.
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