Hoar, Donald Edgar v The Queen [1983] FCA 57

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NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 5 of 1982

Date of Order: 31 March 1983 Where Made: Melbourne ORDER

(i) that the appeals against the conviction and sentence in respect of the charges of assaulting apolice officer in the execution of his duty contrary to s.51 of the

Criminal Law Consolidation Act and wilful obstruction of

a police officer in the due execution of his duty contrary to s.51 of the Criminal Law Consolidation Act he

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that the verdict and the conviction of the appellant dated 17 October 1980 and the sentence in respect of the

charge of conspiracy against the appellant be set aside;

that there be a new trial of the appellant upon the indictment for conspiracy to commit an offence against a

that the appellant be remanded in his present custody to appear before the Supreme Court of the Northern Territory upon his retrial unless in that court, proceedings upon

) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 5 of 1982 , SSS - OEEeeee_ews

In form this is as an appeal against three convictions suffered by the appellant in the Supreme Court of

In substance the appeal concerns the conviction of the appellant for conspiracy to commit an offence against a law of the Territory contrary to s.53(1)(a) of the Criminal Law and Procedure Act. The conspiracy alleged was that 'the appellant along with six other persons between 1 October 1979

and 28 February 1980 at Darwin, Wildboar and other places in

the Northern Territory and at Melbourne conspired and agreed to take barramundi during the closed season and tc take

The other convictions were for assaulting a police officer in the execution of his duty and for wilful obstruction of a police officer in the execution of his duty. In respect of these convictions nothing in the notice of appeal relates to them nor was any argument advanced. Accordingly the matter may be dealt with as if the appeal were

For the offence of conspiracy - a term of imprisonment for three months, suspended, upon the appellant entering into his own recognizance in the sum of $1,000 to be

In addition his Honour ordered forfeiture of certain

a plant and equipment and of two motor vehicles. The Crown

appealed against the sentence imposed on the conspiracy charge and the appellant appealed against the order for forfeiture. On 10 March 1981 the Full Court of the Federal Court upheld both appeals, substituting a term of imprisonment for 14 months, with a non-parole period 6 months. The Court also

allowed the appeal against forfeiture on the ground that in

the circumstances there was no entitlement to make that order.

The Crown then appealed against the decision of the Federal Court that forfeiture was not authorised. On 4

December 1981 the High Court dismissed that appeal.

In none of these proceedings did the appellant challenge his conviction for the offences of conspiracy,

On 8 April 1982 the Full Court of the Federal Court gave the appellant leave to file and serve a notice of appeal against his convictions, the time for appealing long having expired. The ground of the application for leave to appeal out of time was that it had emerged that Allan Michael Bridges, a Crown witness at the appellant's trial, had admitted giving perjured evidence at that trial.

summing up at the trial, the conspiracy charge was supported

"I have told you that so far as illegal fishing is concerned, if you find that fish were taken during the prohibited time, and Bridges' evidence plainly indicates that they were, that is illegal. If you find that they took barramundi at any time, barramundi were at any time taken south of that line drawn on the map, then that also is illegal. If barramundi were taken by these 2 and others during the time forbidden or at the place forbidden, well then you may perhaps think -

• that is a matter for you - you may conclude that if these 2 were involved in taking fish in either of those prohibited ways, then that they had agreed to do so, and that is the crime of which they are charged, the conspiracy.

The first thing I suppose that would be most useful for you to direct your minds to, would be if there was any illegal fishing. Because, if there was not any illegal fishing, there is no evidence of any agreement to do it, in this case you may think there is just no evidence at all, beyond the fact of the illegal fishing and things that followed from it, which tend to suggest that it happened.

There is no other way in which the Crown would seek to prove the illegal agréement to do these things."

from the following passage of the suming up, namely,

evidence bearing on this so faras the Crown is concerned.

First, there is the evidence of the man, ' Bridges. His detailed evidence, you may

was no fishing and one other night, and I can not remember when it was ~- it does not matter

much, when there was only one trip, it may have been two nights there was only one trip. On other nights he gave evidence, you will recall, of people leaving the camp at 5 or 6 in the evening and coming back again about 11 or thereabouts with a great load of fish which were wheelbarrowed and in various other ways got into the abattoir, and then they went out again and came back at 2, 2.30 in the morning, observed by him on frequent occasions, and that is one thing, what Bridges said.

The second thing, you may think that bears upon it the Crown asks you to take into account is the fish remains. These arise in two ways you may think, on the evidence, one is the odd scales, or a bit more than odd scales, the number of scales that were found around the camp itself, in the sinks, in the traps and in the drain and just off the end of the drain, there were scales and one stuck on

! the wall you will remember that was found, and it is not disputed that they were found, but what is said about them of course is that there is no way of linking these two men to those scales, except Bridges himself."

The references to "these 2" are to the appellant and Noble who were tried together and were the only alleged conspirators who were tried at the proceedings in October 1980.

The allegedly "fresh" evidence, constituting the admission by Bridges that part of his evidence at the trial was false, which was before the Full Court upon the application for leave to file the notice of appeal out- of time, was, so far as material, that

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Whether or not the truth is to be found in these affidavits and statements, there is at least consistency in the following allegations:

1. Bridges regularly cleaned the abattoir after each

processing operation. 2. Whenever Fisheries or police officers visited the camp, no fish scales were in existence. 3. On one or more occasions fisheries officers placed scales in and around the abattoir and vehicles. 4. Police officers did not actually participate in the distribution of scales but they saw it being done and took photographs of the finished product. 5. Police officers suggested to Bridges that he should tell a false story of having his life threatened by the appellant.

awareness of Bridges' alleged perjury is said to date

"from February 1982, this does not find support in the

various statements Bridges has made since the trial.

For instance the affidavit of Francis Joseph Gaffy sworn 6 April 1982 (Exhibit 5) deposes to a visit to Mr. Gaffy by Bridges on 4 December 1980. According to Mr. Gaffy, Bridges then complained that he had been approached by

persons representing the appellant "_.. to induce him to change the evidence he had given at Donald Edgar Hoar's trial by saying that he had been forced by the police, and Fisheries Officers to give the evidence that he had given and to

further say that some of the incriminating evidence had been

A written statement (Exhibit 3) and a statutory declaration (Exhibit 2), both made by Bridges about that time, suggest an awareness on the part of the appellant's legal advisers that there was talk of Bridges having given perjured evidence at the trial and of fisheries and police officers having "planted" evidence. Neither document makes clear whether Bridges confirmed or denied to the appellant's solicitors the truth of what was being said.

Because of the allegations made to him by Bridges, Mr. Gaffy arranged for him to be interviewed by Det. Sgt. Holland of the C.I.B. Darwin. An affidavit from Det. Sgt. Holland (Exhibit 6) speaks of a visit to Mr. Gaffy on or about 4 December 1980 and of an inter- view with Mr. Bridges on that day. The interview was recorded and transcribed; the transcript is Exhibit 4. In that statement Bridges speaks of an approach to him by one Bob Thornton about 26 November 1980. Thornton told him that he (Bridges) had committed perjury because he (Thornton) knew that in early January all signs of ° fishing had been removed from the vehicles and equipment at the camp. The statement continues by referring to a 'phone call to Bridges from the appellant's solicitor on

= 1 December 1980. In that conversation Mr. Loftus said

4 that he had information that members of the police force had planted evidence at Marrakai.

".,.. I don't know of any police rember when I was out at Marrakai that I saw pick up scales or put them anywhere near where photographs were taken. I did not know of any fisheries officers that fabricated evidence against anybody connected. In the times that I wasn't there on the site when police were gathering information my wife was always there and Ngaire swears, and says she'll still swear, that at no time when they took her around did they drop scales down or did they do anything like it has been insinuated".

Thus, in regard to what has been put forward as the basis for a new trial viz. perjured testimony by Crown witnesses, there is in Bridges' statement to Det. Sgt. Holland a denial that fisheries or police officers distributed scales around the abattoir and by implic- ation a denial that Bridges had given false testimony. This statement is of course at variance with Bridges' affidavits sworn in 1982 and the statements he made, transcripts of which are attached to those affidavits. Exhibit 1 is the transcript of Bridges'

interview with Chief Supt. Plumb in May this year. That

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statement was made after Bridges had sworn the three

affidavits already referred to and long after he had

made the statement and statutory declaration exhibited s

to Mr. Gaffy''s affidavit. Also it was made after the

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appellant had obtained the leave of the Full Court of the Federal Court to file and serve a notice of appeal against his convictions. The interview with Plumb was conducted over a number of days and the transcript of that interview occupies eight folders. A convenient way of considering the relevant aspects of this interview is to look at the cross-examination of Bridges on that material.

Bridges was first taken to his affidavit of 1 March 1982 (Exhibit A). He was asked whether he still swore that he was present when police officers and fisheries officers placed scales in the abattoir, on the ground at the back of the salt shed, in the drains and in vehicles. He said that he did still so swear. In response to further questioning, Bridges agreed that this had always been his belief and that he had never made any statement to the contrary. Bridges was then reminded of his interview with Det. Chief Supt. Plumb and agreed that this interview had been conducted on the basis that Bridges was free to bring his own tape- recorder to record what was said. The pattern of this part of the cross-examination was to ask questions of Bridges, put to him statements he had allegedly made to Plumb, play the tape-recording of that part of the ° interview and then obtain Bridges' confirmation that this was what he had said. I propose to look at the

First however there is an aspect of the cross- examination that calls for comment. The transcript of the interview with Chief Supt. Plumb did not form part of the appeal books nor in any other way was it material before this Court when the hearing of the appeal began. Quite clearly it was the intention of the Court, when orders were made from time to time giving directions for the conduct of the appeal, that there should be an exchange of all material upon which the parties might rely. Counsel for the respondent sought to justify the non-disclosure of the transcript on the basis that all he wished to do was to cross-examine Bridges with a view to showing prior inconsistent statements. But that does not dispose of the matter. In my view the Crown's introduction of that material was in breach both of the

letter and spirit of the orders made by this Court.

given the special nature of the appeal, it was clearly

desirable that this Court should have all relevant material before it. Counsel for the appellant accepted this principle and accordingly there was no formal objection

to the use of the material by the respondent or the tendering of it as an exhibit. It should be mentioned

that this matter arose late in the afternoon of the First day of the hearing of the appeal, 1 November 1982. The

Court adjourned to give counsel for the appellant ag

opportunity to study the material before cross-examination

proceeded. When the Court resumed the hearing on the following morning, cross-examination continued with a somewhat curious result.

Bridges was once again taken to his affidavit of 1 March 1982 and again asked about -the allegations in para. 4. Again he repeated that fisheries officers had distributed scales but this time said that he could not swear that police officers had done so; he then said of para. 4 in its reference to police officers "No, that is not correct". Asked to give some explanation for his earlier accusation against police officers, Bridges replied thet he had none to offer. Bridges was not asked and gave no explanation for this substantial change in his evidence overnight. It must be remembered too that at this stage

he had not had put to him the transcript of any of the

statements he had made nor had any of the tapes been played

Bridges maintained that the allegation in para. 4 of his affidavit, so far as it concerned fisheries officers, was correct. Bridges was then asked about the allegations in paras 5 and 6 of his affidavit. There was put to him a transcript of certain passages in the interview with Chief Suvt. Plumb and the tape containing those passages was played to him. The transcript contains the following: PLUMB: So you agree with me that f para. 6 'I was instructed by the Police to tell this

story, it was complete fabrication' is not correct?

BRIDGES: No sir, that's not correct." This is a somewhat ambiguous answer. Bridges may have been agreeing that para. 6 was not correct or he may have been disagreeing with Plumb's suggestion that he (Bridges) agreed with him (Plumb). The matter did not emerge with much greater clarity at first in cross- exatiination, for when Mr. Wall Q.C. said to Bridges

Bridges answered "Yes, sir, the police did ask me to ive evidence". Counsel returned to the matter later in cross-examination when he asked Bridges whether the following statement in Exhibit A was correct: "Further

in particular I gave evidence of threats against my life by Donald Hoar". Bridges answered "That is correct", meaning that he had given that evidence.

When asked,with reference to para. 6 of his affidavit, whether he was saying that police officers asked him to give evidence of threats which had in fact been made by the appellant, Bridges answered "Yes, sir" There was a follow-up question "Or suggested to you that you should give false evidence of threats made by Mr. Hoar?" To this Bridges answered:

been made against my wife and myself while employed by this man'.

When asked what was meant in para. 6 of the affidavit by the words "it was a complete fabrication", Bridges answered "I do not know, sir, I cannot explain that". Shortly afterwards he agreed that the statement "it was a complete fabrication" was wrong and that he genuinely feared for his life as a result of threats made by the appellant.

'Later in the interview Bridges said "... the only truthful part about the whole thing Mr. Plumb, is the actual planting of the fish scales. That can be proved. At least I've got something on my side there".

Bridges was then cross-examined regarding his interview with Det. Sgt. Holland, which interview was recorded and the transcript admitted in evidence as Exhibit 4. It is a lengthy document and the cross- examination in regard to it was lengthy. Much of it concerns conversations in December 1980 between Bridges and a man called Gabriel whose house Bridges was sharing at the time. Gabriel, it was said, had told Bridges that he had been asked to deliver a message "that no matter where we went in the Territory he'd find us and the contract he had out on us, that they'd find us". According to

ridges this was a reference to the appellant. This was elicited

with a view to showing that Bridges in truth had a fear for his life so far as the appellant was concerned and

that any evidence he gave to this effect during the

Earlier in these reasons I quoted an extract from Exhibit 4 in which Bridges said: "I did not know of any fisheries officers that fabricated evidence | against anybody connected". The impact that this statement might have had upon Bridges' general credibility was somewhat lessened by the fact that counsel did no more than ack Bridges to read the relevant page of the transcript and confirm its accuracy. He was not asked expressly whether his

statement regarding the non-involvement of fisheries

cross-examination of Bridges and the various documents

to which that cross-examination related. From that cross-

examination in its entirety several propositions emerged.

1. In his affidavit of 1 March 1982 Bridges accused police officers and fisheries officers of placing scales in and around the abattoir. He also accused the police of instructing him to give false evidence of threats against his life hy the appellant.

2. In his cross-examination Bridges expressly retracted the allegations against police officers so far as concerns the scales.

in his cross-examination Bridges agreed that indeed he was instructed by the police to tell no more than the truth in this regard, he having a genuine fear of the appellant.

4. With ane qualification, Bridges maintained his allegation that fisheries officers placed scales in and around the abattoir. That qualification emerges from the transcript of his interview with Det. Sgt. Holland (Exhibit 4). As the statement in that transcript "I did not know of any fisheries officers that fabricated evidence against anybody connected" was not put to Bridges expressly, it does not carry the same force as other retractions made in cross-

It is necessary now to consider the implications of the various statements made by Bridges from time to time, in the light of the correct approach to be taken by the Court to the present appeal.

In the respondent's submission the relevant principles may be found in the judgment of the High , Court in Davies and Cody v. R. (1937) 57 C.L.R. 170 at pp.183, 184.

"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of the trial

in which the witness has given ewidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground of appeal in-itself for setting aside a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence the case is different."

The Court considered it unwise to attempt to frame a universal rule for such cases but in the instant appeal it took the view that the Crown had chosen to rely upon the evidence of a witness who subsequently recanted his evidence and then withdrew his recantation. In the circumstances, the trial judge not having advised the jury to reject the testimony of that witness, the Court con- sidered it unsafe to allow the conviction to stand and ordered a new trial.

Against a background of that principle, which this Court is bound to apply, counsel for the respondent invited us to approach the matter in this way. He said thet it was not the function cf this Court to review the

evidence at large; in particular it was not the province

of the Court to attempt to weigh the credibility of Bridges against the credibility of other witnesses, either by reference to their testimony at the trial or

to any testimony given at the appeal. Hence, it was said,

officers most implicated by Bridges, or for those persons to give oral evidence at the appeal. Notwithstanding, the respondent did file an affidavit sworn by Wayne John Potts, a fisheries officer, who on 14 February 1980 inspected the abattoir with Mitchell and Bridges. In that affidavit (Exhibit 7) Potts deposed to seeing a number of fish scales, to Davern arriving at the abattoir later thac day and to the fact that all the scales that he (Potts) saw on that morning in and around the abattoir were discovered before Davern arrived. In his words "None of the scales that I saw were put there by any Fisheries Officers or any other person in my presence". The appellant did not require Mr. Potts to attend for cross-examination. :

In the respondent's submission, the sole question for the Court in regard to Bridges was whether his evidence before this Court was sufficiently credible, in material respects, to justify quashing the conviction and ordering a new trial. In that submission, Bridges' evidence was so hopelessly unreliable that no credence could be given to it whatsoever. He had sworn an affidavit on 1 March 1982 and in the course of cross-examination retracted most of the allegations contained therein; and he had

made statements to police officers quite at variance,with

of the Court of Criminal Anpeal delivered by Widgery J.

the court to consider and assess the reliability of that evidence when the witness appears and is cross-examined,

and this is particularly true where evidence in called in rebuttal before

this courr. Having heard the fresh evidence and considered the reliability

First, if satisfied that the fresh evidence is true and that is is con- clusive of the appeal, the court can,

the conviction. Alternatively, 1f not satisfied that the evidence is conclusive, the court may order a new trial so that a jury can consider the fresh evidence alongside that given at the original

the court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the court would no doubt be inclined to order a new trial

so that the evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course. Then there is a third possibility, namely, that this court, having heard the evidence, positively disbelieves it and is satisfied that the witness is not speaking the truth. In that event, and speaking generally again, no new trial is called for because the fresh evidence is treated as worthless, and the court will then proceed to deal with the appeal as though the fresh evidence had - not been tendered."

Earlier in these reasons I expressed the view that the notion of evidence of perjured testimony as_

"fresh evidence" is somewhet inappropriate. No doubt

conscious of this, the appellant obtained leave to amend its grounds of appeal by adding to para. 2 sub-paras (c)-(g) inclusive. These additional grounds seek to put the matter on a wider basis that that of fresh evidence.

The distinction between fresh evidence pointing to fraud, on the one hand, and new but not fresh evidence upon which an appeal court makes a finding of fraud, was referred to by Burt C.J. in Snowtop Mushrooms v. Powley (1982) W.A.R. 191 at p.197, though that appeal was concerned with a civil action.

this court should approach the appeal before it, so far as it concerns Bridges' testimony. Save in one respect, I have no difficulty in rejecting Bridges as a witness

of any credibility so far as concerns the material before this Court. He was content to make allegations and withdraw them and he was also content, it would seem, to

provide those who interviewed him with information that

might serve the inquirer's purpose. As the evangelist

"The wind bloweth where it Listeth, and thou hearest the sound thereof, but canst not tell whence it cometh. , and whither it goeth'" (John 3:8). . :

The only reservation I have in this regard -is that, save for a passage in the transcript of interview with Net. Sgt. Holland, Bridges has consistently maintained

ft since the trial that fisheries officers Davern and

Mitchell distributed fish scales around what was immediately prior thereto a clean abattoir. But consistency of itself is no guarantee of truth. The question still remains - if, in respect of the allegations he has made since the trial, Bridges has been shown to be generally unreliable and to be capable of making statements on the basis of what is likely to appeal to those whom he addresses, what basis is there for concluding that, in respect of the conduct of the fisheries officers, his allegations are any more credible? In my view the answer must be "none", There is, after all, nothing to corroborate what Bridges has said. That would not be fatal if he was acceptable as a credible witness. But he is

part of his allegations and, for no other reason than consistency, give it a credence which nothing else he has said bears.

• There is a wider question - if Bridges has demonstrated his utter unreliability as a witness, should the conviction for conspiracy be allowed to stand? It is a wider issue because it goes beyond the_ presence or otherwise of fish scales when fisheries _ and police officers arrived at the camp. Bridges' testimony played a vital role in the appellant's con-

viction because it was he who described the activities

of the appellant and others in returning to the camp

of a night laden with fish, processing those fish in the abattoir and carting them away. There was some corroboration of Bridges' evidence but there can be no doubt that he was the principal Crown witness against

In my view, persuasive though that argument is in some respects, it cannot lead to a quashing of the appellant's conviction. Nothing in the affidavits and statements furnished by Bridges since the trial casts any doubt on the evidence he gave concerning the involvement of the appellant in a conspiracy to take barramundi during the closed season and in closed waters. Nor was Bridges questioned during the appeal, by counsel for the appellant or the respondent, about that evidence. However unreliable Bridges has been shown to be, that unreliability relates principally to allegations he has made since the trial. I can see no justification for concluding that the evidence he gave at the trial was generally so unreliable that the conviction ought not to be allowed to stand. As the Court of Criminal Appeal pointed out in Flower at p.150 - "If the witness's new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at the trial. Witnesses may have

second thoughts for a variety of different reasons".

Originally the notice of appeal contended that the declaration by the Administrator closing the waters to-barramundi fishing for a prescribed period and the declaration by the Administrator declaring 'certain waters to be closed to barramundi fishing con- pletely were each invalid and that therefore the indictment for conspiracy was defective. As the grounds of appeal finally emerged, the attack on the declaration relating to closed waters was abandoned but that relating to closed season was maintained. The relevant declaration was published in Gazette No. G34 of 24 August 1979 and it was in the following terms: "CLOSURE OF WATERS I, JOHN ARMSTRONG ENGLAND, the Adminstrator of the Northern Territory of Australia, acting with the advice of the Executive Council, pur- suant to section 13 of the Fisheries Act, declare all waters to be closed against the

(a) LATES CALCARIFER, commonly known as "barramundi";

(b) POLYNEMUS SHERIDANI, commonly known as "threadfin salmon".

Dated this seventeenth day of August 1979". As can be seen the declaration purports to close "all waters" against the taking of barramundi. The authority

for such a declaration must be found in s.13(1) of the

Fisheries Act (now repealed). That sub-section empowers the Administrator in Council, by notice in the Gazette,

(d) against the taking of fish during a period or a part of the year specified on the notice;

(e) against the taking of fish of a specified species;"

The attack upon the declaration was in terms that an authority to declare "any waters" to be closed is not an authority to declare "all waters" to be closed.

In my view this ground of appeal cannot succeed. To begin with, the declaration under attack is not one that purports simply to close all waters. It is a declaration that closes all waters against the taking of specified species of fish for the period therein stated. If a declaration relates to particular waters, it will be necessary to define those waters either by reference to a plan or to a metes and bounds or some other description capable of identifying the waters. But, as a matter of language, there is no reason why an authority to make a declaration relating to "any waters" should not authorise a declaration relating to "all waters". The whole is the sum of the parts and what

may be attained by piecemeal declarations may equally

There is no principle of law that requires subordinate legislation to be self-contained. As

"The general proposition that in no circumstances can a regulation - incorporate by reference something not set forth in it is, in my opinion, unsound. It is true that a regulation should indicate with sufficient certainty, to those upon whom it imposes a penalty for a breach of it, what is the extent of the obligation. Where a regulation contains a reference to some other document the question whether or not the requirement just stated is ful- filled must depend upon a consider- ation of the particular regulation and of the nature of the contents of the incorporated document".

See also Gibbs J. in Sobania v. Nitsche (1969) 16 F.L.R. 329 at p.342.

I agree that if, in the present case, it is hot possible to give to the term "all waters" a suffici- ently certain meaning the declaration is bad for it fails to identify the extent of the prohibition it seeks to

(unreported decision of Supreme Court of the Northern Territory delivered 2 April 1982), Gallop J. held the

declaration the subject of this appeal to be invalid.

His Honour referred to the definition of "waters" in

(b) any part of the sea in respect of which the Legislative Assembly has power to make laws, under and in accordance with section 6 of the Northern Territory (Self-Government) Act 1978 of the Commonwealth, with respect to fisheries, and

(c) the sea-bed and subsoil beneath any such waters".

His Honour then referred to s.20 of the Interpretation Act which gives to words contained in an instrument of a legislative or administrative character the same interpretation as they bear in the Act pursuant to which the instrument is created. It followed therefore that "waters" in the declaration had the meaning that it bears in the Fisheries Act.

However his Honour read the definition of waters in such a way that the declaration might relate to categories (a), (b) or (c) or all of them. In that event it would not be possible for a person reading the declaration to know what waters were referred to. In my respectful view, the categories in the definition of "waters" in s.5(1) are not alternatives. Between them they constitute the waters of the Territory and any waters which answer any of the descriptions in the definition fall within the declaration.

The appellant did not argue that if paras (a), (b) and (c) of s.5(1) were read as comprising the notion of "waters", there was still doubt as to the scope of

& the declaration. Nor did he contend that the waters in

respect of which he had been charged were outside the

The indictment - bad for duplicity or multiplicity?

As originally formulated the notice of appeal contended that count 1 in the indictment was bad for duplicity and was confusing to the jury, and that the trial Judge erred in allowing that count to go to the jury and in the directions that he gave in respect of it. As the notice of appeal finally emerged, this ground was amended so as to allege multiplicity rather than duplicity, though it was argued in terms of the latter.

Count 1 is the charge of conspiracy and, in order to understand the appellant's submission, it is helpful to set out the count in full.

"Conspiracy to commit an offence against a law of the Territory: Contrary to section 53(1) of the Criminal Law and Procedure Act.

DONALD EDGAR HOAR, JACK HARRY NOBLE, PETER DOUGLAS FOREMAN, ROY JAMES WRIGHT, ELAINE MICHELLE MARY KIRWIN, ROBERT GORDON CAMERON, DARRYL JOHN WALDOCK, THOMAS BENJAMIN PRICE and others unknown between the Ist day of October, 1979 and the 28th day of February 1980 at Darwin, Wildboar, and divers other places in the Northern Territory of Australia, and at - Melbourne in the State of Victoria con- spired and agreed together, to commit the following offences:

(1) To take barramundi during a period of the year declared by the Administrator acting pursuant to section 13(1) of

the Fisheries Act to be closed against the taking of barramundi and published in the Northern Territory Government Gazette.

(2) To take barramundi upstream from a line determined by the Admin- istrator under section 14 of the Fisheries Act: Contrary to section 38 of the Fisheries Act.n

The appellant contended that the count was effectively one in respect of two offences and that it was therefore bad for duplicity. This point was not taken at the trial and counsel for the respondent objected to an application for leave to add it as a ground of appeal. Counsel drew our attention to s.341 of the Criminal Law

"Every objection to any information for any formal defect apparent on the

face thereof, shall be taken by demurrer, or motion to quash such

information, before the jury are sworn, and not afterwards".

But regard must be had to the Indictment Act, s.18 of

which makes it clear that before or at any stage of a trial the court may amend an indictment which is defect- ive unless, having regard to the merits of the case, the required amendment cannot be made without injustice. If there is substance in the appellant's complaint regarding the indictment, I do not think that complaint is barred by reason of the appellant's failure to raise it during the trial. At the same time that failure is clearly a relevant considerationin determining what weight should be given to the complaint and, in particular, whether

In my view count 1 in the indictment was not bad either for duplicity or multiplicity. The appellant's submission, I think, misunderstands what the indictment alleges. It alleges a conspiracy to commit an offence against a law of the Territory and that conspiracy is the offence the subject of the indictment. A conspiracy to commit an offence is itself an offence by reason of s.53(1)(a) of the

Criminal Law and Procedure Act. Essentially what is

alleged against the appellant and the others with whom he was charged is that they conspired to engage in illegal fishing for barramundi and that the fishing was illegal both because it took place during the closed season and because it took place in closed waters. The Crown might make good either or both of what are truly particulars of the substantive offence alleged. If the Crown failed to make good either of those par- ticulars, it failed to make good the commission of an offence. In charging the jury the learned trial Judge said : "So that if these 2 or others, either the named people or other people unnamed, agreed to take fish illegally in either or both of these 2 ways then you may properly find each one of them guilty of that first conspiracy". That direction was properly given. It was not confusing

and caused 16 injustice to the appellant. If the jury

were satisfied that there was a conspiracy to commit an

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offence by taking barramundi during the closed season, they might properly convict. If they were satisfied that there was a conspiracy to commit an offence by taking barramundi from closed waters, equally they might convict. A fortiori, if they were satisfied that the conspiracy extended to both aspects of illegal fishing they were entitled to convict. If they were not satisfied that there was a conspiracy to take fish illegally in either of the two ways specified in the indictment, they were obliged to acquit the appellant. It may properly be inferred from the jury's verdict that they were satis- fied that there was a conspiracy and that that conspiracy was to take barramundi illegally, during the closed season or from the closed waters or both.

No attack is now made on the declaration under s.14 of the Fisheries Act. For the reasons appearing earlier in this judgment, the challenge to the declaration under s.13(1) of the Fisheries Act cannot succeed. Both declarations were therefore lawful exercises of power and in my view the indictment of conspiracy is not open to challenge.

It follows then that this appeal must be dismissed.

I certify that this and the preceding 41 pages are a true copy of the

Reasons for Judgment herein of his Honour Mr. Justice Toohey

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) ) NORTHERN TERRITORY DISTRICT ) ' REGISTRY ) No. NTG.5 of 1982 ) )

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY

DAVIES, J: I have had the opportunity of reading the reasons for judgment prepared by Mr Justice Smithers. I agree with them and I add a brief statement of my own only because this is an

At the trial, the principal witness for the Crown was Mr A.M. Bridges. It is unlikely that a conviction could have been obtained without his evidence. The evidence of the * police officers and the Fisheries officers as to the finding of

barramundi fish scales at the abattoirs may not itself have established barramundi. Moreover, Mr Bridges' evidence was necessary to connect the appellant with the fish scales found by the police and Fisheries officers.

The effect of the evidence given by Mr Bridges to this Court 1s that the appellant did not have a fair trial because false evidence was given by Mr Bridges and Fisheries officers and photographs were put in of fish scales which had been planted by Fisheries officers with a view to obtaining a conviction. When such an allegation is made after a trial, this Court on appeal , may hear evidence. As Barwick CJ said in Ratten v The Queen (1974) 131 CLR 510 at pp.515-6,

; "...this Court has recently reiterated the view u that under the Australian provisions a court of B criminal appeal in Australia should allow an appeal i, if on its own view of the evidence it would be

• dangerous or unsafe in the administration of the | criminal law to allow a verdict of guilty to stand

(Hayes v The Queen (1973) 47 ALJR 603). This 4 decision may not have disclosed as great a

' discretion in a court of criminal appeal in Australia, as the decision of the House of Lords in Stafford v Director of Public Prosecutions [1974]

4 AC 878 has done for the United Kingdom. But the Court's decision is founded on the existence of the function of independent assessment of the evidence by the court of criminal appeal."

: "In this situation, the court must as before decide j the credibility and the cogency of the fresh " evidence in order to determine whether, when the . fresh evidence, if believed by the jury, is taken, ' with the evidence given at the trial in that sense

most favourable to the accused which reasonable men

' might properly accept, it is likely that a verdict of guilty would not have been returned. In 4 considering the material before it for this

' purpose, the element of credibility will be satisfied if the court 1s of opinion that the i evidence is capable of belief and likely to be believed by a jury. The court in this instance ' will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take.

v Director of Public Prosecutions [1974] Ac 878 that the view of the court must be taken to be a reasonable one, and a contrary view, by whomsoever held, to be an unreasonable one : and no doubt at times this must be so. But I conceive that there may be reasonable views of facts which do not commend themselves to the court which do not become unreasonable because the court does not entertain them. In the situation with which I am presently . dealing, namely of fresh evidence not claimed to establish innocence but to be of such credibility and cogency as to be likely to influence a jury away from a verdict of guilty, it is what a reasonable jury might reasonably make of this evidence which is the dominant consideration. of course, if the court thinks that there is no doubt that its own view of the evidence is the only reasonable view, it will act upon that view as one upon which the jury would be bound to act.

| Of course, it may be said, as was said in Stafford

To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own : view cf that material that there has been a . miscarriage in the sense that a verdict of guilty

does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that nm new material is not fresh evidence. But 1f there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which 1s so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial : will be ordered as a remedy for the miscarriage which has occurred because of the absence at the

• trial of the fresh evidence."

' The same principle was stated by Widgery J in Regina v Flower [1966] 1 QB 146 where his Lordship said, at p.150, -

: "The second possibility 1s that the court is not ! satisfied that the fresh evidence 1s true but nevertheless thinks that it might be acceptable to, , and believed by, a jury, in which case as a general ' proposition the court would no doubt be inclined to order a new trial so that that evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course."

In weighing up the evidence, the Court must keep in mind the stricture of Rich and Dixon JJ in Craig v The King, 49 CLR 429 at 439, where their Honours said :

"If after a verdict of guilty the mere fact that a prisoner produced further relevant evidence required the Court to vacate the conviction and submit the question of the prisoner's guilt to another jury, then in a jurisdiction where perjury is rife great abuses would ensue. A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be

least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence

already adduced at the trial must be a matter of great importance."

During the trial, there appeared to be inconsistencies in Mr Bridges' evidence that he was given by the appellant the task of cleaning the abattoirs of fish scales, that he did so and left the abattoirs spotless, that police and Fisheries officers were often around the abattoirs and did not see any scales and yet, when police and Fisheries officers inspected the camp and abattoirs in late February and early March 1980, they found the fish scales of which photographs were tendered in evidence. The following are examples of the cross-examination which ensued':

"And daily you were being visited by fisheries and police - daily?---Yes, sir, I was.

Sometimes convoys of Fisheries officers?---Yes, sir. Five vehicles?---That is correct. f

Did you know what they were looking for, Mr Bridges?---At first I didn't sir - - -

could be out there doing any sort of business, sir.

In convoys of 5 toyotas with radios - are they out there looking for parrots?---I doubt it, sir.

It starts with F, does it not?--~-They were out there patrolling the areas, yes.

And do you know what they found during your time - not one scale?---Yes, sir.

Convoys of toyotas looking for fish - you are alone in the camp day after day right?---Yes, sir.

Not one scale found?---That's not true either, sir.

can't be serious all the time - I am allowed to relax surely - - -

I am just asking you to agree that you smiled?---I grinned, yes, sir.

When they did fand the scales, they found them in the most obvious spot, did they not?---Not on the first - - -

In the sink that you had cleaned 25 times?-~-They did not find the first lot - - -

In 25 days?---They did not find the first lot of scales anywhere near the camp, they found them somewhere else.

I did not put that to you?---You just said they found them in the sink, sir.

I said they found scales in the sink - I did not even put that to you. I withdraw that. They

found scales in the most obvious spot?---They found-

scales all over the place, sir. Mr Bridges, could you address yourself to the question I am asking you ~ they found scales in the most obvious spot?---Yes.

A knife and a sink, do you not?--~At home, yes, sir.

Do you know where they found the scales about the thirtieth or fortieth day?---Yes, sir.

You had washed it fifty times in fifty days?---It had been washed, yes, sir.

Fifty times in fifty days?---It had been washed, sir.

You washed it every day?---Yes, sir. Day after day?---It was done in routine, yes.

Each day from the very beginning according to your evidence, part of your duties was to clean up evidence, signs of fishing?---Yes, sir.

That is what you say?---That's what I say, sir. Every day?---Yes, sir.

You are still preserving what you now say, I suppose, is a silence about what you had seen at Marrakai? That is what you say, that if you were not telling people about what you are now saying happened, you were keeping silent?--~-Yes, sir.

llth, the 12th, the 13th, had they wished, any of these people could have seen in a moment the scales~ in great quantities in the sink, the boning room,

Yes, your duty was to keep that camp spotlessly clean?---Which I did.

Because it was a place used for the killing of meat

for human consumption?---And other things, yes, sir.

Let us take it bit by bit, it was a place used for the killing of meat for human consumption?--~-Yes,

You knew that cleanliness was an essential for its licence?---That's correct.

That is why you were day after day to clean it out?-~-Yes, sir.

Of course, you say that you will agree with me that the cleanliness of the plant was one of the most important parts of your duties?---That is correct, sir.

Day after day you conscientiously did that, did you not?---Yes, sir, I did.

You kept it spotless?---I thought it was spotless, yes.

You are a man who takes pride in his work, are you not?---Yes, sir, normally.

Your work here included the cleanliness of the camp?---That is correct.

These trailers or these vehicles, whatever they are, used for the killing process?---That is correct, sir.

To be kept clean, the chillers, the freezers?---Yes, sir, that's correct.

On 15 January, 1980 the police called in again and spent 2 hours looking around the camp?~--That is correct, sir. c

15 January, is that not right?---I beg your pardon?

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' HIS HONOUR: He has already said, 'That's correct.'

Mr MURRAY: Yes, I am asking him again, your Honour.

. The date and the time?---Yes, the police were out

4 there. They were virtually there every day from about the tenth.

You see, that is what I am putting to you. Specifically the date?---Yes, they would have been there on the fifteenth.

They spent 2 hours looking over the camp?~~-Something like that, sir.

O£ course you realise the purpose of them being out : there - one of the purposes was to do with what : they - they were interested in what had been going 2 on at Marrakai, were they not?---Yes, sir.

When did you go into Darwin?---To Fisheries Headquarters, sir, I can't - - -

When? Is that when you changed from being someone suppressing the facts as you knew them to someone who was assisting these people to nail Hoar?-~-That is the time I gave a record of interview, sir.

'4 Was that when you changed from being someone who was suppressing the truth as you knew it, according

to you, and changed to someone who was assisting to nail Hoar?---Yes, sir.

The photographs had not been taken, had they?-~-Not at that stage.

Because the day that the photographs were taker, was one of the long series of photographic expeditions, was it not?---That 1s correct, sir."

In his summing-up, the learned trial Judge said of this evidence:

"The second thing, you may think that bears upon it the Crown asks you to take into account is the fish remains. These arise in two ways you may think,

on the evidence, one is the odd scales, or a bit more than odd scales, the number of scales that were found around the camp itself, in the sinks, in the traps and in the drain and just off the end of the drain, there were scales and one stuck on the wall you will remember that was found, and it is not disputed that they were found, but what is said about them of course 1s that there is no way of linking these two men to those scales, except Bridges himself."

"The bigger mystery connected with fish remains you may think, is the amount that was found about the camp in mid February by the Fisheries people when they were looking for them when Bridges told you that he had cleaned and mopped out the abattoir daily I think, and for some 50 odd days, how did he miss all these? If as Bridges says, it was a matter of great importance to Hoar from time to time that there should be what used to be known as an emu parade going around picking up scales lying about on the ground and in drainage traps and in drains and things of that sort, you may wonder how there was st1ll any there in February, and you may wonder whether in fact the scales that were found in February by the Fisheries people may have had nothing to do with anything that happened when Hoar and Noble were still there at the end of December."

This Court has now heard evidence from Mr Bridges that the fish scales of which photographs were tendered in Court were planted by Pisheries officers. Before this Court, Mr Bridges was a very poor witness. But at the trial he was also a poor witness, as indeed the passages from his evidence which I have set out above demonstrate. In the course of his summing-up, the learned trial Judge referred to "Bridges, unsatisfactory though he may-be in some respects..." and to "the unsatisfactory Bridges". The learned trial Judge also said :

"Now, that is Bridges. He is said to be entirely incapable of belief, that really you cannot believe a word he says, based upon his manner and demeanour in the witness box. His little smiles and things from time to time..-what does that mean and his rather fatuous excuse for smiling when he said he wanted to bring a bit of lightness into it

or something of that sort. That may have impressed you or it may not have, I really could not say. Based also upon his contradictions,

upon his having sworn things in the magistrate's court in the committal hearing and sworn the direct opposite before you which was demonstrated on a number of occasions and which he said was a

Now, of course those things may be a mistake. It is a matter entirely for you to decide. I cannot help you one way or another. Bither he has told deliberate lies in one place or the other or he has made a mistake. You will have to decide which when you are considering that. So it is said to

you that insofar as the prosecution depends on Bridges, really, you would have to finish up with some sort of a doubt, an enormous doubt, but certainly a reasonable doubt based simply on him,

the argument as put." However, the jury did accept the substance of Mr Bradges'

This Court is asked to disbelieve Mr Bridges, to find that his evidence to it was so lacking in credibility that his allegation that the fish scales were planted could not be believed by a jury. For my own part, I find no distinction between the quality of the evidence which he gave to this Court and the quality of the evidence which he gave at the trial. At both the trial and before this Court, parts of his evidence were scarcely credible. But, at the trial, the jury accepted the substance of his evidence. I do not find his evidence at the trial with respect to the fish scales any more convincing than the evidence which he gave to this Court. Indeed, the evidence given at the trial on this point leads me to think that there were relevant facts which were not then disclosed. The allegations made by Mr Bridges before this Court provide a possible explanation of the contradictions which appeared in his evidence at the trial.

£ It is necessary to take into account that Mr Bridges came forward with his allegations as to the planting of the fish scales at a time when he was dissatisfied with the treatment he had received

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from the prose:ution. This factor is countered, however, to some extent ky the fact that Mr Bridges originally made his allegations gainst the appellant at a time when he was dissatisfied rith the appellant's treatment of him and when he considered th t the appellant owed him money.

In the circw stances it seems to me that the allegations now made by Mr Bridges provide fresh evidence of a matter which was of importance to the trial and that that evidence was not available to the appellant at the time of the trial. I am not able to determine whether the substance of Mr Bridges' new evidence given to this Court was or was not true. Indeed, as the Court has not heard from the Fisheries officers I could not even attempt that task. However, the question to be determined is whether 1t is "of sufficient credibility and cogency as to be likely to influence a jury away from a verdict of guilty having regard to the 'view a jury of reasonable men may properly take'." Tam of the view that the evidence given by Mr Bridges to the Court was evidence which, if given at the trial, could well have been accepted and, if accepted, could have produced a different verdict. It would be likely to produce a different verdict by destroying the corroboration which seemed necessary to lend such credibility to the evidence of "the unsatisfactory Bridges" as to

Accordingly, I would allow the appeal and would order that the conviction of the appellant be set aside and that there be a new trial. .

I have had the opportunity of reading the reasons for judgment prepared by Mr Justice Toohey. I agree with the reasons stated

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