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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tasmania v Lin

Details

AGLC: Tasmania v Lin [2011] TASSC 14
Case: [2011] TASSC 14
Decision Date: 10 March 2011

CaseChat Overview and Summary

In the recent case of Tasmania v Lin, the Tasmanian Supreme Court addressed a complex issue concerning the nature of public duties that can form the foundation of a charge of deflection of public officers from public duties. The respondent, Lin, was charged with multiple counts of fraud and other related offences. The crux of the dispute was whether the public duties he was alleged to have deflected were of a nature that could be the basis for such criminal charges.

The court was tasked with determining the scope and definition of the public duties that could be the subject of a charge under this offence. Specifically, it needed to discern whether the alleged deflection involved duties that were integral to the public administration or if they were peripheral. The court had to interpret the statutory provisions and case law to ascertain the correct scope of the term 'public duties' in this context. Additionally, the court needed to examine whether the alleged actions of the respondent amounted to a deflection that could be criminalised under the statute.

The court found that the public duties in question were indeed of a nature that could form the basis of a charge of deflection of a public officer. The reasoning hinged on the interpretation of the relevant statutory provisions and the established legal principles. The court held that the duties in question were integral to the public administration and therefore could be considered as the foundation for such a charge. It was determined that the respondent's actions constituted a deflection from these duties, which was sufficiently serious to warrant criminal prosecution. The court's interpretation emphasised the importance of distinguishing between core public duties and peripheral tasks in determining the scope of the offence.

The final orders of the court affirmed the charges against the respondent, upholding the validity of the charges of fraud and deflection of public officers from public duties. The court's decision provided clarity on the scope of public duties that could form the basis of such charges, reinforcing the legal framework governing these offences.

Orders