Tasmania v Lin
[2013] TASSC 81
•13 March 2013
[2013] TASSC 81
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Lin [2013] TASSC 81
PARTIES: STATE of TASMANIA
v
LIN, Tu Ai
FILE NO: 188/2008
DELIVERED ON: 13 March 2013
DELIVERED AT: Hobart
HEARING DATE: 18 February 2013
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Procedure – Information, indictment or presentment – Motion to quash – Indictment defective – Accused charged with conspiracy – Whether indictment disclosed a crime.
Criminal Code Act 1924 (Tas), s352.
Aust Dig Criminal Law [3082]
REPRESENTATION:
Counsel:
Crown: A R Jacobs
Accused: K Baumeler
Solicitors:
Crown: Director of Public Prosecutions
Accused: Butler McIntyre & Butler
Judgment Number: [2013] TASSC 81
Number of paragraphs: 21
Serial No 81/2013
File No 188/2008
STATE OF TASMANIA v TU AI LIN
REASONS FOR JUDGMENT TENNENT J
13 March 2013
The accused in this matter has faced trial twice on charges of conspiracy. The first trial did not proceed following legal argument. On the second trial, the accused was found guilty by a jury of an alternative count and convicted. He successfully appealed his conviction and it was quashed.
The State prepared a fresh indictment and seeks to have a third trial. Counsel for the accused has moved, pursuant to the Criminal Code Act 1924, s352, for the fresh indictment to be quashed on the ground that it is formally defective. The defect identified is that the indictment does not disclose a crime. The fresh indictment is in the following terms:
"STATEMENT OF CRIME
First Count
CONSPIRACY – Contrary to Section 297(1)(d) of the Criminal Code.
PARTICULARS
TU AI LIN 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 cheat 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 cause the Minister and/or the Secretary to be unaware that there were less rock lobster owned by the State than he believed there to be and would or could deflect the Minister and/or the Secretary from the performance of, or prejudice their performance of, public duties vested in them namely:-
(a)Determining and setting the total allowable catch for the Tasmanian Rock Lobster Fishery;
(b)Allocating the total allowable catch for the Tasmania Rock Lobster fishery to Tasmania Rock Lobster fishing licence holders;
(c)Ensuring that the holder of Tasmania 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 Tasmania Rock Lobster fishing licence or apply to a Magistrate to cancel or suspend a Tasmania 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.
Further Particulars:
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.
ALTERNATIVELY
1STATEMENT OF CRIME
First Count
CONSPIRACY – Contrary to Section 297(1)(c) of the Criminal Code.
PARTICULARS
TU AI LIN 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 commit crimes contrary to Section 265(a) of the Living Marine Resources Management Act 1995 in keeping records under the said Act, namely commercial Rock Lobster Quota Dockets and/or Fish Receipt Dockets by understating thereon the amount of rock lobster taken by the said Phillip Allan Stephens and/or Judith Stephens."
It is stating the obvious to point out that the accused is charged with conspiracy. He is not charged with actual breaches of the Living Marine Resources Management Act 1993 ("the Act").
The basis for the accused's argument lies in a letter which was written by the Minister for Primary Industries and Water on 7 August 2012 addressed to Mr Bob Lister, the Chief Executive Officer of the Tasmanian Scallop Fishermen's Association. The letter reads as follows:
"I am writing to you in relation to Tasmanian fish processing licences purportedly issued under Part 4 of the Living Marine Resources Management Act 1995 (Tas) ('the Act') with only an interstate processing premises specified in the licence.
I wish to advise you that I as the Minister responsible for administering the Act am of the view that I have no authority to issue a fish processing licence for the purpose of authorising the processing of fish at a place outside Tasmania. In particular I have formed the view that the relevant provisions of Part 4 of the Act do not have extra-territorial (interstate) application.
Therefore, notwithstanding that there are currently eight fish processing licences issued that specify only an interstate processing address as a place where fish is authorised to be processed under the licence, these licences are a nullity and therefore are of no effect.
The Director Marine Resources will be notifying each of the fish processors that their licence is of no effect and will invite them to make an entirely fresh application under the Act for the granting of a fish processing licence which specifies a processing place located within Tasmania.
My view about my lack of authority to regulate the processing of fish at an interstate place will have implications for all rock lobster, giant crab and scallop fishers who intend to unload rock lobster, giant crab or scallop at an interstate port as the Fisheries (Rock Lobster) Rules 2011, Fisheries (Giant Crab) Rules 2006 and Fisheries (Scallop) Rules 2010 all require that all rock lobster, giant crab and scallop unloaded in interstate ports by endorsed Tasmanian licensed fishers must only be sold to a licensed Tasmanian processor.
Consequently, at this time Tasmanian licensed fishers holding endorsements to unload rock lobster and or giant crab in Victoria cannot legally do so as they cannot practically comply with r65 of the Fisheries (Rock Lobster) Rules 2011 and / or r39 of the Fisheries (Giant Crab) Rules 2006.
I would advise that it is not my intent to amend legislation to provide me with authority to regulate the processing of fish at an interstate place.
If you have any inquiries in relation to this matter, please contact the Manager Fisheries Compliance and Licensing, Steve Withers, on (03) 6233 3543.
Yours sincerely,
Bryan Green MP
MINISTER FOR PRIMARY INDUSTRIES AND WATER"
A copy of that letter came to the attention of the accused and his counsel after the hearing of his appeal but just prior to judgment. It was brought to the attention of the Court. Given what was to be the outcome of the appeal, the Court declined to allow the hearing to be re-opened for further argument in relation to it.
The crimes the accused is alleged to have committed are said to have been committed between 15 June 2001 and 2 August 2005. At that time, the accused held what everyone believed was a valid fish processing licence issued under the Act. It is apparent from the letter set out above that the view of the relevant minister is that the licence the accused held was, at the time of the alleged offending, invalid insofar as it authorised him to process fish in Victoria which had been caught in Tasmanian waters. The State does not disagree with that view. However, it argues that it does not matter because of the nature of the charges against the accused.
Counsel for the accused argues that, by virtue of provisions in the Act, ownership of all fish in Tasmanian State waters is vested in the State. The minister's powers to manage fisheries is confined to those State waters. Once any fish taken in Tasmanian State waters leave those waters, the minister has no power to deal with them. In the present case, the documents completed by the accused were completed in Victoria at a time when the fish referred to in them were in Victoria. Because of the way in which the minister's powers were confined, the minister did not have power to require the accused to complete the various documents. As a consequence, since the accused had no obligation to complete the various documents, he cannot be charged with any crime dependent on completion of those documents.
Objects of the Act and duties of the minister
The preamble to the Act describes it as "An Act to promote the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats and to repeal the Fisheries Act 1959". The Act, s7, relevantly provides:
"7 Purpose and objectives
(1) The purpose of this Act is to achieve sustainable development of living marine resources having regard to the need to -
(a)increase the community's understanding of the integrity of the ecosystem upon which fisheries depend; and
(b) provide and maintain sustainability of living marine resources
…
(2) A person must perform any function or exercise any power under this Act in a manner which furthers the objectives of resource management."
The Act, s18 provides that the minister must ensure that the Act is administered in a way which promotes the sustainable management of living marine resources. The Act, Pt3, deals with fisheries management. It provides for management plans consisting of rules for particular fisheries and authorizes the minister to make rules in respect of a management plan. Section 39 relates to rules relating to fish and fishing, while s40A relates to rules relating to fish processing. The rules are extensive and are clearly designed so that the minister knows what fish are being taken from State waters, and what steps may or may not need to be taken to regulate that taking to ensure fisheries in State waters are not depleted. The various documents relied on by the State in this trial required to be completed under the Act by fishermen and fish processors all require detail about the numbers of fish taken and processed.
If the minister in such documents is provided with information which is inaccurate, as in it understates the amount of fish actually taken from State waters, the ability of the minister to monitor and regulate levels of fish taken in State waters is adversely affected.
The nature of the charge of conspiracy
The first count on the indictment alleges the commission of a crime said to have been committed under the Criminal Code, s297(1)(d). That provides that any person who conspires with another "to cheat or defraud the public, or any particular person, or class of persons" is guilty of a crime. As can be seen from the wording of the first count set out in par[2], it is alleged the accused conspired with a Phillip Stephens and/or others to cheat the Minister for Primary Industries and Water and/or the secretary of the relevant department in relation to the administration of the Act. It is alleged that he conspired with others to cheat the minister and/or the secretary by doing two things, namely:
(a) by falsely under-declaring and/or under-recording in records, dockets and/or other documents, including documents provided or required to be provided under the Act, the amount of rock lobster bought from Phillip Stephens and processed by his company, and
(b) falsifying company records in relation to those transactions.
The crime of conspiracy requires that an agreement be entered into between two or more persons to commit an unlawful act with the intention of carrying it out. The central element of the crime is the agreement to engage in a common enterprise to do the alleged unlawful act. In this case, to convict the accused of this charge, the State needs to prove that the accused entered into an agreement with Phillip Stephens and/or others to cheat the minister and/or the secretary, and intended to do just that. The form of that agreement does not really matter. All that the State must prove is that there was an agreement formed by either words or conduct to carry out a common design with the intention of bringing about the unlawful object of that design.
The State does not necessarily have to prove that the accused did the things agreed to be done. However, it may rely on evidence of the accused actually doing the things it says the accused did for the purpose of inviting a jury to infer the existence of an agreement and the intention to give effect to it. That is the more usual sort of evidence used in cases such as this because there is often no evidence of an actual discussion where the parties agreed to do something.
The indictment contained a number of what are described as "Further Particulars". The State proposes to put before a jury evidence in the form of the various documents, the subject of those particulars, and a number of other documents taken from the records of the accused company, and ask the jury to infer from the documents an agreement to commit an unlawful act and an intention to carry it out. The acts particularised are all acts said to have been done by the accused and/or an employee or employees of his company. For the purposes of this argument, it has been assumed that all the acts referred to occurred at the business premises in Victoria of the accused's company and that the State may be able to prove those acts. All the acts identified relate to the completion and/or signing of documents required to be completed and/or signed by a fish processor licenced under the Act. At the relevant times, the accused held what all parties understood to be a valid fish processor's licence issued under the Act. It is only from August 2012 that there was any suggestion that any such licence, insofar as it authorised processing of fish taken from Tasmanian waters in Victoria, was invalid.
Counsel for the accused argues that, notwithstanding that the accused and everyone else may have believed at the relevant time that he held a valid fish processor's licence, he did not. Therefore he had no legal obligation to complete and/or sign any of the documents it is alleged he or an employee did complete and/or sign. If he had no legal obligation to do those things he cannot be charged with offending which relies on that documentation having been completed and/or signed.
At first blush, the argument would appear to have merit. However, the difficulty with it arises from the nature of the charge the accused is facing. What underpins the crime is the existence at the relevant time of an agreement entered into between two or more persons to commit an unlawful act with the intention of carrying it out. It is not an element of the crime that the accused actually committed a breach of the Act.
The State's position is that, even if the accused, with the benefit of hindsight, had no obligation to complete and sign the relevant documentation, at the time of the alleged offending, he not only believed he had that obligation but also he or his employees completed the documents. It is the State's case that those documents evidence that there was an under-declaring of fish caught, sold and purchased. The information in those documents, the State asserts, was false. It does not matter, the State argues, that the accused may have had no legal obligation to complete the documents at all. He did so, they contained false information, and they were at the time relied on by the relevant minister and/or secretary. The documents to that extent could be evidence of an agreement to cheat the minister and an intention to carry it out. With respect, I am of the view that is the correct approach, certainly to the first count.
Had the accused been charged simply with breaches of the Act, the situation may have been as argued by counsel for the accused.
As to the alternative count, that allegation arises by reference to the Criminal Code, s297(1)(c). That section provides that any person who conspires with another to commit any crime is guilty of a crime. The crimes it is alleged the accused conspired with Phillip Stephens to commit were breaches of the Act, s265(a). Assuming the relevant minister's view as expressed in the letter set out earlier in these reasons is correct, the accused, no matter his belief as to his licence status over the years the conspiracy is alleged to have operated, could not have committed a breach of s265(a) because he had no obligation to keep the records referred to. However, again, he is charged with conspiracy and not breaches of the Act.
The Criminal Code refers to the commission of any crime. The alternative count does not require the conspiracy to relate to an agreement that the accused would necessarily commit a particular crime. He could agree with Phillip Stephens to do certain things which would result in Mr Stephens committing a crime or crimes. The State's case is that the accused and Mr Stephens and others conspired to commit crimes under s265 in "keeping records under the said Act … by understating thereon the amount of rock lobster ...". The State need only prove that there was an agreement between the accused and Stephens, and perhaps others to commit the relevant crimes, and that they intended to carry out that agreement. The accused and Mr Stephens each kept a number of records. They at times filled out different parts of the same paperwork. It is the State's case that those records evidence an understating of amounts of rock lobster taken by Mr Stephens. While it may be accepted with hindsight that the accused had no legal obligation to complete some of the records upon which the State will seek to rely, he did so. At the time he did so, he understood that the licence he believed he had required him to complete certain documents and complete them accurately, and it may be assumed he understood why that was necessary.
This allegation of conspiracy requires that there be an agreement to commit a crime. It is the State's case that the accused and Stephens reached an agreement to commit crimes contrary to the Act and that, at the time they entered into that agreement, they intended to carry it out. They did certain acts and kept certain records to facilitate the carrying out of that agreement. The alternative count does not require proof that the accused either did or could have committed a crime under the Act. It would be open to the State to argue that, at the time, it was an agreement that both the accused and Stephens would commit crimes contrary to the Act and that it was irrelevant that seven years later the accused is told he could not commit such a crime. It is the agreement entered into a number of years ago and the intention which accompanied it which are the central elements of the crime charged.
In the circumstances, the application by the accused to quash the indictment must fail.
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