Tasmania v Lin

[2011] TASSC 14

[2011] TASSC 14

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Tasmania v Lin [2011] TASSC 14

PARTIES:  TASMANIA, STATE OF
  v
  LIN, Tu Ai

FILE NO/S:  188/2008
DELIVERED ON:  10 March 2011
DELIVERED AT:  Hobart
HEARING DATE:  9 March 2011
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Particular offences – Property offences – Other frauds and impositions – Fraud – Generally – Deflection of public officers from public duties – What public duties can be foundation of charge.

Criminal Code (Tas), s297(1)(d).

Board of Trade v Owen [1957] AC 602; Welham v Director of Public Prosecutions [1961] AC 103; R v Howes (1971) 2 SASR 293; Connor v Sankey [1976] 2 NSWLR 570; R v Horsington [1983] 2 NSWLR 72; Simonidis v R (1983) 8 A Crim R 315; R v Terry [1984] AC 374; R v Turner (No 4) (2001) 10 Tas R 81, referred to.

Aust Dig Criminal Law [2395]

REPRESENTATION:

Counsel:
             Crown:  A R Jacobs
             Accused:  P W Tree SC, K Baumeler
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Butler McIntyre & Butler

Judgment Number:  [2011] TASSC 14
Number of paragraphs:  32

Serial No 14/2011
File No 188/2008

STATE OF TASMANIA v TU AI LIN

REASONS FOR JUDGMENT  BLOW J

10 March 2011

1. The accused has been indicted on a single count of conspiracy, contrary to the Criminal Code ("the Code"), s297(1)(d). The indictment alleges that he conspired with one or more other people 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".  It is not alleged that any economic interests were affected or imperilled.  Fraud can be constituted by the actual or possible deflection of a public officer from carrying out his or her public duty: R v Turner (No 4) (2001) 10 Tas R 81; R v Turner (No 7) (2001) 10 Tas R 219. The Crown contends that the accused conspired to defraud the Minister and/or the Secretary in that way.

1. The accused moved for the indictment to be quashed pursuant to the Code, s352(1), on the basis that it was calculated to prejudice or embarrass him in his defence. I held that the indictment was prejudicial and embarrassing, in that it was inconsistent with particulars delivered by the Crown by letter. However, rather than quashing the indictment, I invited Crown counsel to make an application to amend it.

1. Subsequently, an application was made to amend the indictment so that, after alleging when the accused conspired, with whom he conspired who the victims were, and by what conduct the conspiracy was to be carried into effect (essentially the understatement and under-recording of lobster catches and consignments), it would conclude as follows:

"… when such conduct would, or had the potential to, cause the Minister and/or the Secretary to be deprived of, or likely be deprived of, information required to carry out the public duties vested in them with respect to the management, control, protection and regulation of the taking of rock lobster, and the processing of rock lobster taken, from Tasmanian State waters including:-

(a)sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

(b)obtaining accurate information to allow them to periodically determine an appropriate total allowable catch for the rock lobster fishery."

1. Counsel for the accused opposed the amendment, on the ground that the indictment would still be prejudicial and embarrassing, and the amendment would therefore be futile.  He argued that, if the amendment were made, the indictment would be prejudicial and embarrassing for three reasons:

·     That the indictment would not allege that the conduct referred to would or could deflect the Minister and/or the Secretary from carrying out their public duties.

·     That the use of the word "including" results in the specified duties (a) and (b) constituting a non-exhaustive list.  It is prejudicial and embarrassing for the accused to be placed in a position where, consistently with the wording of the indictment, the Crown might later seek to rely upon one or more other public duties, or alleged public duties, of the Minister and/or the Secretary.

· That the so-called public duties specified in pars(a) and (b) are not public duties of such a nature that they can form the basis of a charge of conspiracy to defraud contrary to s297(1)(d).

1. As to the second of these points, Crown counsel indicated that the word "including" could be changed to "namely" or some similar word.  In my view that would be appropriate, and would overcome the second problem identified by defence counsel.

1. No concession was made in relation to either of the other objections to the amendment.  In my view both of the other arguments are sound.  I said so yesterday at the conclusion of the argument.  These are my reasons for reaching that conclusion.

Deflection from the performance of public duties

1. The proposed amended indictment alleges the actual or potential deprivation of the Minister and/or the Secretary of information.  Depriving them of information could be capable of deflecting them from the performance of their public duties, but would not necessarily be so capable.

1. The proposed amended indictment does not allege that they were, or could have been, deflected from the performance of their public duties.

1. An agreement to engage in certain conduct that might have the effect of depriving the Minister and/or the Secretary of information could not amount to a conspiracy to defraud unless that conduct would or could result in the Minister and/or the Secretary being deflected from the performance of one or more public duties.  It is that deflection or potential deflection that is an essential ingredient of the relevant species of fraud.  As McHugh J put it in Peters v R (1998) 192 CLR 493 at 525, "… a conspiracy to defraud may be established if the defendants agree to deceive a person into acting or refraining from acting contrary to his or her public duty".

1. The indictment would not be defective if it alleged that certain conduct would or could deflect the relevant officers from the performance of public duties, or prejudice the performance of their public duties.  If the deprivation of information is to be mentioned at all, it should be mentioned only as a link in the alleged chain of causation leading to the deflection from the performance of public duties.

What public duties can be the foundation of a conspiracy charge?

1. The Living Marine Resources Management Act ("the Act"), s7, reads as follows, and did so at all material times:

"(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; and

(ba)take account of a corresponding law; and

(c)take account of the community's needs in respect of living marine resources; and

(d)take account of the community's interests in living marine resources.

(2)    A person must perform any function or exercise any power under this Act in a manner which furthers the objective of resource management."

1. The following definition appears in s3 of that Act:

"'objectives of resource management' means the objectives set out in Schedule 1".

1. That Schedule reads as follows:

schedule 1 — Objectives of the Resource Management and Planning System of Tasmania

Section 3

1    The objectives of the resource management and planning system of Tasmania are —  

(a)  to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b)  to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c)  to encourage public involvement in resource management and planning; and

(d)  to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and

(e)  to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.

2    In clause 1(a), 'sustainable development' means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while —  

(a)  sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

(b)  safeguarding the life-supporting capacity of air, water, soil and ecosystems; and

(c)  avoiding, remedying or mitigating any adverse effects of activities on the environment."

1. The words of Sch1, cl 2(a), have been adopted in the proposed amendment in the indictment. It is true that, in a sense, the Minister and the Secretary each had a duty, pursuant to s7(2), to perform their functions under the Act, and to exercise their powers under the Act, so as to achieve the objective referred to in Sch1, cl 2(a). However, s7 and Sch1 make provisions as to how statutory functions and powers are to be exercised, as distinct from giving statutory powers and functions to public officers. In one sense, the duty of a public officer to exercise a statutory power or a statutory function in a particular manner, or with a particular objective in mind, might be described as a public duty. However the words "public duty" are used in a different sense in the cases concerning the species of fraud that the Crown alleges in this case. In those cases, the words are used to refer to an executive or administrative function of a public nature.

1. Board of Trade v Owen [1957] AC 602 concerned the public duties of German officials whose role was to grant or refuse export licences.

1. Welham v Director of Public Prosecutions [1961] AC 103 concerned the public duties of officers of the Board of Trade who inspected records to see that statutory credit restrictions were being observed.

1. R v Harris (1833) 1 Mood CC 393; 168 ER 1316 concerned a forged order for the discharge of a prisoner and the public duties of a gaoler.

1. R v Moah (1858) 7 Cox CC 503 concerned the appointment of a police constable, and the public duties of a Chief Constable.

1. R v Terry [1984] AC 374 concerned the driving of a vehicle on which a different vehicle's excise licence disc was displayed, contrary to a statutory provision, and the public duties of a police officer as to law enforcement.

1. R v Horsington [1983] 2 NSWLR 72 concerned the public duties of the Registrar of Co-operative Societies, who administered a government-funded scheme for the making available of low-interest loans for the purchase of houses at or below a maximum price. False representations were made as to sale prices being below the maximum figure.

1. Connor v Sankey [1976] 2 NSWLR 570 concerned the public duty of the Governor-General in approving an authority to borrow pursuant to a Commonwealth statute.

1. R v Howes (1971) 2 SASR 293 concerned the duty of the Public Examinations Board of South Australia, which had the role of determining whether individuals had fulfilled the requirements for matriculation to certain universities.

1. In Simonidis v R (1983) 8 A Crim R 315, which concerned false medical certificates, the relevant public duties were those of Queensland's Workers' Compensation Board.

1. My own decision in R v Turner (No 4) (above) concerned the understatement of orange roughy catches and the public duties of a Commonwealth minister and the Australian Fisheries Management Authority in relation to the management of a fishery, including the fixing of quotas and the monitoring of compliance with quota restrictions, when valid.

1. The sorts of duties that s7 and Sch 1 are concerned with are better described as objectives, rather than public duties in the relevant sense. The sorts of public duties that this species of fraud relates to are executive or administrative duties, such as the duty to grant or refuse export licences. The essential nature of the fraud is that it causes, or could cause, a public officer to act in a way that he or she would not otherwise have acted in discharging an executive or administrative function. The officer's function therefore needs to be particularised.

1. Paragraph (b) of the proposed amendment asserts that the Minister and the Secretary had duties as to "obtaining accurate information to allow them to periodically determine an appropriate total allowable catch for the rock lobster fishery". 

1. That part of the amendment is misconceived. Under s94 of the Act, at all material times the Minister had a power, but not an obligation, to determine a total allowable catch for the relevant fishery. There has never been anything in the relevant legislation to require the Minister to obtain or act upon accurate information. Obtaining and acting upon accurate information would no doubt have been an excellent idea at all times, but there was no legal duty in relation to accurate information.

1. The Secretary had an obligation in relation to the collection of information, at all material times, by virtue of s144, which reads as follows:

"The Secretary is to make arrangements for the collection of information relating to the fishing industry and the protection of the marine environment —  

(a)to assess fish stocks and the amount of fish caught, processed and exported; and

(b)to provide details about the effect of any activity under a licence on the marine environment; and

(c)to assist in the detection of offences under this Act; and

(d)   for any other purpose of this Act."

1. It should be noted that the Secretary's obligation was "to make arrangements for the collection of information", whereas the proposed amendment speaks of a duty of "obtaining accurate information". 

1. Of course the Minister and the Secretary, as officers of the Executive Government of this State, had powers, functions and responsibilities in relation to the administration of the Act that were not spelled out in the Act itself. For example, it was no doubt the role of the Secretary and his subordinates to collect and analyse the information collected pursuant to the s144 arrangements for the purpose of providing advice to the Minister in relation to the exercise of his statutory powers.

1. All this leads me to the conclusion that the alleged duties as formulated in item (b) in the proposed amendment were not duties that the Minister or the Secretary had at any material time. 

1. If the Crown wishes to proceed, and to incorporate in the indictment particulars of the public duties that it seeks to rely upon, there will need to be an amendment that refers to duties that the Minister and the Secretary actually had, whether statutory, non-statutory or both, described by reference to their executive or administrative functions.