APPEALED FROM: (State of) Tasmania v Lin [2011] TASSC 54

JUDGMENT OF: Crawford CJ, Tennent and Porter JJ

Evidence - Documentary evidence - Statutory provisions relating to business records - In general - Criminal cases - Prosecution case based on business records - Makers of representations not apparent from records - Request by accused to call makers of the representations at the trial - Prosecution asserted inability to identify makers - Unsuccessful application by accused to have evidence not admitted - Finding that accused likely to have known of the identity of the makers - Onus on prosecution to show reasonable cause for failing to call the makers as witnesses - Relevance of knowledge of the accused - Evidence Act 2001 (Tas), ss167, 169.

Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324; Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307, considered.

Evidence - Documentary evidence - Statutory provisions relating to business records - Particular cases - Criminal proceedings - Business record - Notation on document relied on for a non-hearsay purpose - Request by accused to call maker - Prosecution asserted inability to identify maker - Unsuccessful application by accused to have evidence not admitted - Evidence Act, ss167 and 169 apply to representations tendered for non-hearsay purposes.

Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324; Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307, considered.

Lewis v Nortex Pty Ltd (In liq) [2002] NSWSC 237, applied.

Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances amounting to miscarriage - Misdirection or non-direction - Misdirection - Prosecution based on representations in business records - Miscarriage of justice where trial judge wrongly gave significance to a notation not relied on by prosecution as incriminating - Failure to properly re-direct when requested.

Criminal Law - Procedure - Confiscation of proceeds of crime and related matters - Pecuniary penalty and like orders - Assessment of benefit derived from the commission of the crime - Crime of conspiracy - Conspiracy to commit crimes under fishing legislation by understating in catch records amount of fish caught - Payment by accused for undeclared amount at lesser rate than for declared amount - Benefit derived was the wholesale value of the undeclared fish received - Price paid for undeclared fish disregarded.

Cornwell v Australian Federal Police (1990) 24 FCR 544 at 554, followed.

Crime (Confiscation of Profits) Act 1993 (Tas), ss21, 22.

Judgment Number: [2012] TASCCA 9

2 The orders of conviction and sentence made on 4 October 2011 are quashed.

3 The pecuniary penalty order made on 4 October 2011 is set aside.

4 The appellant is to be retried on the indictment.

1 The appellant was found guilty of one count of conspiracy. He appealed against conviction, sentence and the making of a pecuniary penalty order. On 24 August 2012, the Court allowed the appeal against the conviction, quashed the conviction, and ordered that the appellant be retried. The Court is now publishing its reasons for so ordering.

2 Porter and Tennent JJ are publishing their joint reasons for concluding that the conviction should be set aside. I agree generally with their reasons and have nothing to add.

3 It became unnecessary to deal with the appeal against the sentence and the pecuniary penalty order. However, a matter of principle was raised by the appeal against the pecuniary penalty order, in particular by ground 7(a), (b) and (c), which might be raised again if the appellant is convicted at a retrial. Therefore, it is prudent to deal with that aspect of the appeal. The following are my reasons for concluding that what is raised by ground 7(a), (b) and (c) fails.

4 Pursuant to the Crime (Confiscation of Profits) Act 1993 ("the Confiscation Act"), s22, the trial judge assessed the value of the benefits derived by the appellant from the commission of the conspiracy, of which he was convicted, as $120,220.25, and under s21(1), ordered that he pay to the State a pecuniary penalty equal to the value so assessed.

5 Ground 7(a), (b) and (c) of the appeal attacks the assessment of the value of the benefits derived by the appellant from the commission of the conspiracy in the following terms:

(a) failing to undertake an assessment of the value of the benefits derived by the appellant from the commission of the conspiracy;

(b) wrongly undertaking or purporting to undertake an assessment of the value of the benefits derived by the appellant from the commission of the 12 particularised offences contrary to s265(a) of the Living Marine Resources Management Act;

(c) wrongly assessing the value of the benefits derived by the appellant as being the wholesale value of the additional crayfish obtained by him, without having regard to the price paid by the appellant for the crayfish."

6 To understand those grounds it is first necessary to understand how the learned judge came to assess the value of the benefits derived by the appellant from the commission of the conspiracy in the sum of $120,220.25.

7 The appellant was one of two shareholders in Union Seafood Pty Ltd. That company was the sole shareholder in Southern United Seafood Australia Pty Ltd, to which I will refer as "the business". The appellant had effective control of the business, its management and operations. In the words of the appellant's counsel, which were adopted by the learned judge in his comments on passing sentence, the business revolved around the appellant. The business held a fish processing licence under the Living Marine Resources Management Act 1955. The appellant was the nominated person for the purposes of that licence.

8 Phillip Allan Stephens was a commercial fisherman who undertook his fishing business in partnership with his wife. They were licensed under the Act to take and sell rock lobster, but were limited by a prescribed quota as to the weight of lobster they could take and sell.

9 The learned judge found that the duration of the conspiracy was from 15 June 2001 until 2 August 2005, and that the key parties to it were the appellant and Mr Stephens. It was also found that consistent with their conspiracy, on 12 occasions during that period, when rock lobster caught by the Stephens were sold to the business, the amount of lobster so sold was understated in records, dockets and other documents required by the Act, and in particular in the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Dockets and, in almost all cases, corresponding Fish Receipt Dockets. The total of the understatements was found to be 3,520.5 kilograms.

10 As found by the learned judge when sentencing the appellant, in financial terms the Stephens benefited more from the conspiracy than the business. It enabled them to take and sell more than their prescribed quota of lobster.

11 An advantage gained by the business from the conspiracy was that it was able to trade in more lobster than was available lawfully to it. A further advantage arose out of the terms of the conspiracy itself. There was evidence that on three of the occasions when the weight of lobster was understated, the Stephens sold the undeclared lobster to the business for a price per kilogram that was lower than the price paid to the Stephens for lobster that was declared in the documents required by the Act. The learned judge observed that on one such occasion, the difference in price was $2 per kilogram, on a second occasion it was $3 per kilogram and on the third it was $6 per kilogram. In the course of his closing address and in submissions, Crown counsel suggested that on average, the business paid the Stephens about $3 per kilogram less for undeclared lobster.

12 In his submissions to the learned judge, the appellant's counsel argued that the evidence of a discounted price related only to those three occasions, and that the learned judge could not make a finding concerning the other nine occasions. Importantly, for the purposes of this ground, counsel for the appellant submitted that the value of the benefits derived from the commission of the conspiracy was the difference between what the business paid per kilogram for undeclared lobster and what it paid for declared lobster. The learned judge did not make a precise finding concerning that difference, but if the business saved $3 per kilogram on average for the understated lobster found by his Honour to total 3,520.5 kilograms, the savings of the business were $10,561.50. Alternatively, if the state of the evidence was that on only three occasions was the price discounted, the savings were less than that sum.

13 The learned judge rejected that argument. Instead, he assessed the value of the benefits derived by the appellant as $120,220.25, which his Honour said was the wholesale value of the lobster that came into the possession, or under the control, of the appellant or the business, at the request or direction of the appellant, by reason of the operation of the conspiracy. It was in fact based on the price per kilogram that the business paid to the Stephens for lobster that was declared in the dockets required by the Act.

14 In support of the first three paragraphs of the ground of appeal, the appellant's counsel submitted that the learned judge erred by failing to deduct from the assessed wholesale value of the understated lobster the amount the business in fact paid for that lobster. It was submitted once again that the savings achieved by purchasing cheaper lobster pursuant to the conspiracy represented the benefit derived from the commission of the conspiracy.

15 The learned judge declined to deduct what was paid for the lobster because of the provisions of the Confiscation Act, s22(6), that "in calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of a serious offence or serious offences, any expenses or outgoings of the person in connection with the commission of the offence or offences are to be disregarded."

16 By virtue of s22(2), the value of the benefits derived by the appellant from the commission of the conspiracy was to be assessed having regard to the evidence before the court concerning all or any of a number of specified factors. It is only necessary to state the one in par(a) of the subsection. It is:

"The money, or the value of the property other than money, that came into the possession or under the control of -

(ii) another person at the request or direction of the defendant -

by reason of the commission of the offence or any of the offences."

17 What the learned judge did, properly in my view and consistently with subs(2)(a), was to have regard to the value of the lobster that came into the possession or under the control of the appellant, or the business at his request or direction, by reason of the commission of the conspiracy. In accordance with subs(6), the learned judge, also properly in my view, disregarded the expenses or outgoings in acquiring that lobster.

18 The interpretation section, s4, provides that unless the contrary intention appears, "'benefit' includes service or advantage". That is merely inclusionary, and is of no real assistance for the purposes of the appeal. For the purposes of the Confiscation Act, a benefit may include a gain, profit, reward or advance, but it is not synonymous with "profit". In that regard, the Court should follow what was said by the Court of Criminal Appeal in Director of Pubic Prosecutions v Nieves [1992] VicRp 15; [1992] 1 VR 257; (1991) 51 A Crim R 350, when considering a similar statutory scheme.

19 Nieves was a case in which a drug trafficker had been paid a total of $21,000 in return for methylamphetamine. At 262; 355 the court emphasised that the word "benefits" has a meaning different from the word "profits"; and that while profits involve benefits to a person, it does not inevitably follow that a benefit includes a profit to the recipient. The court rejected as inconceivable that a court of law should engage itself in the procedure of calculating and setting off against the amount derived from the commission of a crime the expenditure incurred as a result of the unlawful arrangement.

20 The conclusion reached by the Victorian Court of Criminal Appeal is reinforced for this State by the inclusion in the Confiscation Act of s22(6). There was no similar provision in the Victorian legislation under consideration. Support is also to be found in Cornwell v Australian Federal Police (1990) 24 FCR 544 at 554; 49 A Crim R 122 at 132; 94 ALR 495 at 505, and Razzi v Australian Federal Police (1990) 26 FCR 508 at 514; [1990] FCA 431; 97 ALR 349 at 356; [1990] FCA 431; 50 A Crim R 142 at 148. See also Re Tillotson [1995] 1 Qd R 86 at 88 and Director of Public Prosecutions v Raines (1995) 79 A Crim R 448 at 451, in which the contrary view of Macrossan CJ in Re Ashworth [1992] 2 Qd R 459 at 467; (1991) 56 A Crim R 122 at 131 was not followed.

21 It was pointed out by counsel for the appellant that the appellant was convicted of a conspiracy to commit offences under the Living Marine Resources Management Act and not of those offences themselves. He submitted that the appellant's expenses or outgoings in connection with the commission of the conspiracy itself, which effectively was an unlawful agreement, could not logically include the cost of the undeclared fish.

22 In Cornwell v Australian Federal Police the offender had also been convicted of a conspiracy, one of conspiring with others to import prohibited imports into Australia, namely narcotic goods consisting of cannabis. At 554; 132; 505 it was said by Wilcox J, with whom Lockhart J agreed and Pincus J essentially did also, that for the purposes of the statutory equivalent of s22(6), the purchase of a narcotic for importation into Australia was clearly an "outgoing" incurred in connection with the agreement to import, referring to John Fairfax & Sons Pty Ltd v Commissioner of Taxation (Cth) [1959] HCA 4; (1959) 101 CLR 30 per Dixon J at 35. Wilcox J considered it clear that the policy of the equivalent of subs(6) was that such expenses were to be disregarded. This Court should follow the Full Court of the Federal Court unless persuaded it was plainly wrong. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151 - 152; CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at 412. It was not plainly wrong.

23 Perhaps it should be added that no point was taken at the hearing of the appeal that it was the business which derived the benefit from the commission of the conspiracy and not the appellant. For that reason, there is no need to deal with the point. However, it seems that ss22(2)(a) and 23 of the Confiscation Act would determine it in the Crown's favour.

24 These appeal proceedings are made up of an appeal against conviction, an appeal from the making of a pecuniary penalty order, and an appeal against sentence. On 24 August 2012 the Court allowed the appeal against conviction, made consequential orders including an order for retrial, and said that it would later publish its reasons. These are our reasons for making the orders.

25 On 29 September 2011, the appellant, Mr Lin, was found guilty by a jury of one count of conspiracy, contrary to s297(1)(c) of the Criminal Code.[1] The count of conspiracy of which the appellant was found guilty was an alternative to the first count on the indictment, also one of conspiracy. The particulars of that alternative count were that between dates in June 2001 and August 2005 the appellant conspired with Phillip Stephens "and/or with other people including Mrs Judith Stephens" to commit crimes contrary to the Living Marine Resources Management Act 1995 (the LMRM Act), s265(a), in keeping records under that Act, namely Commercial Rock Lobster Quota Dockets and/or Fish Receipt Dockets by understating on those dockets the amount of rock lobster taken by the Stephens'.

26 Section 265(a) of the LMRM Act provides as follows:

A person must not, in keeping any records, accounts or other information under this Act -

(a) make a statement knowing it to be false or misleading; ...".

27 On 4 October 2011 the learned trial judge, Evans J, made a pecuniary penalty order under the Crime (Confiscation of Profits) Act 1993, s21(1), in the sum of $120,220.25. His Honour then sentenced the appellant to one year's imprisonment to commence on 29 September 2011, and ordered that he not be eligible for parole until he has served one half of that sentence.

28 There seems to be no controversy about some basic facts. The appellant ran a fish processing business in Melbourne. He was one of two shareholders, (the other being Leang Ye Lin of the same address as the appellant) in a company which was the sole shareholder in a company named Southern Unite Seafood Australia Pty Ltd, and later, Southern United Seafood Australia Pty Ltd. For the sake of convenience the company will be called SUS. There has been no suggestion that the appellant did not have effective control of the business. Through that business, the appellant dealt with a number of fishermen. He bought quantities of various fish from them, and then on-sold that fish to restaurants and others.

29 Phillip Allan Stephens was a commercial fisherman who lived at Port Welshpool in Victoria. He ran his fishing business in partnership with his wife, Judith G Stephens. Their fishing vessel was the Southern Leader. The partnership was known as P A & J G Stephens and in these reasons will be simply called the partnership.

30 The first or primary count on the indictment, as distinct from the alternative of which the appellant was convicted, was a count of conspiracy contrary to s297(1)(d) of the Code.[2] The conspiracy alleged was with Phillip Stephens "and/or with other people including Mrs Judith Stephens" to defraud the Minister administering the LMRM Act by falsely under-declaring and under-recording the amount of rock lobster caught and sold by the partnership to SUS.

31 "Further particulars" of the first count on the indictment identified 12 occasions between 15 June 2001 and 2 August 2005 on which it was alleged that the appellant, or an agent of SUS at his direction, completed a document which falsely recorded the weight of rock lobster received from the partnership vessel the Southern Leader. (For present purposes these will be simply referred to as the particulars, using their numbers.) In each case, it was alleged that the records completed disclosed an amount of rock lobster bought and sold which was less than that actually received and paid for. The amount of rock lobster not disclosed totalled some 3,520 kilograms. The evidence suggested that while SUS paid the partnership for the undeclared rock lobster, it did so largely at a discounted rate.

32 The Crown case against the appellant was based almost exclusively, if not totally, on various documents said to be business records of either SUS or the partnership, or of both. Before the trial commenced, the appellant raised an objection to the tender of a number of these documents as business records within the meaning of the Evidence Act 2001, s69(1), and to the admissibility of representations contained in them.

33 On 17 March 2011, the appellant's solicitors made a request of the Director of Public Prosecutions for "the Crown to call as witnesses in the trial, each and every person who made each and every previous representation relied on by the Crown, pursuant to Part 6 of Chapter 4 of the Evidence Act". The request did not identify any persons or representations. Presumably, the author of the letter had in mind the Evidence Act, s167, which (relevantly) provides that a party may make a reasonable request to another party for the purpose of determining a question that relates to a previous representation, or the authenticity, identity or admissibility of a document or thing.

34 Apparently, the Crown maintained that it was unable to identify the persons who made the representations. Before a jury was empanelled, Evans J heard evidence on the voir dire and submissions on the admissibility of the particular documents. Those submissions included an application pursuant to the Evidence Act, s169(1)(c), that the evidence not be admitted because the Crown had, without reasonable cause, failed or refused to comply with the request. On 19 July 2011 his Honour ruled that most of the documents which were the subject of objection were admissible. One document seemed to have been overlooked, and on 20 September, by an oral ruling after the actual trial had commenced, was held to be admissible. On 4 October 2011, immediately before making the pecuniary penalty order and passing sentence, his Honour published reasons for the rulings of 19 July (and one of 26 September which is not relevant to these proceedings): Tasmania v Lin [2011] TASSC 54.

35 As to the appeal against conviction, the amended notice of appeal delineates grounds which are said to be "evidentiary" (grounds 1 and 2) and those which are "non-evidentiary" (grounds 3, 4, 4A and 6; ground 5 was abandoned). The evidentiary grounds relate to the ruling on the admissibility of the documents. Ground 6 is a complaint that the verdict was unsafe and unsatisfactory for a number of specified reasons. It is therefore necessary to describe the nature of the documents upon which the Crown case was based, and how the case was essentially put.

36 At the trial, there was a principal set of documents tendered by the Crown for each of the 12 particulars of the primary count of conspiracy. The documents in each set were numbered so that the first number indicated the particular to which it related. For example, document number 12 related to particular 1, document 22 was a document of the same type, but related to particular 2. Document 51 related to particular 5, and document 121 was of a same type as number 51, but related to particular 12. Capital letters were used after the numbers where there was more than one page to a document, or where there were insufficient numbers for a particular. When tendered, the documents were given the same exhibit numbers, so that document number 12 became P12, document 51 became P51 and so on. (Exhibits with numbers of 130 and over did not directly relate to the particulars, although in some instances they were different copies of those which did.)

37 The documents were mainly of the following types and descriptions, and will be set out basically in the order which they appear in the jury books:

• Commercial Rock Lobster Quota Dockets - (LMRM Act documents).
• Fish Transfer Certificate (Receipt at Premises) forms/Fish Receipt Dockets[3] - (LMRM Act documents).
• Rock Lobster Catch Record Logbook/Rock Lobster Catch Record forms[4] - (LMRM Act documents).
• Processor Return Forms - (LMRM Act documents).
• Printed Tax Invoice/Statements addressed to SUS containing handwritten details.
• SUS printed documents showing total lobster weight and breakdown into weight categories (SUS weight documents).
• SUS printed "Recipient Created Tax Invoices".
• Printed spreadsheet stock records, marked "Southern Unite Seafood Confidential".
• SUS loose-leaf folder and diary pages with handwritten entries.

38 Some of these documents were part of the records of the Department of Primary Industries, Water and Environment (the "Department"). Some were found during two searches by police of the SUS premises in Melbourne, the first on 8 August 2006 and the second on 4 December 2006. Some were found during a police search of the Stephens' home on 5 February 2006, and some were found during a search of the Southern Leader on the same day. We will deal later in these reasons in greater detail with the circumstances in which some particular documents were found. It is convenient at this stage to set out the evidence before the trial judge as to the general situation concerning the SUS premises.

39 Sergeant Peters and Constable Fogarty of Tasmania Police carried out the searches. Constable Fogarty described them as a relatively large processing premises with a downstairs area of perhaps two or three times the size of the courtroom, in which there were holding tanks and freezers. There was an office area upstairs which was close to the size of the courtroom. He said that on 8 August 2006, there were 10 to 15 people working in the factory area, with probably five girls working in the office area. All of the office staff appeared to be Asian, and "all appeared to have some grasp of English ...". Sergeant Peters spoke on the telephone with the appellant as then did one of the staff members. That staff member directed the officers to what were called archive records which were in an area in the ceiling above, but to one side of, the factory floor. The officers found numerous boxes of records; between 30 and 50. This area is accessed by a ladder and seems to be more correctly described as an area above a suspended ceiling, or mezzanine-type area.

40 Constable Fogarty said the office was one big room with about six desks in it. On one side of the room was a large compactus file container which ran from the floor almost to the ceiling, and nearly all of the business records were kept in the compactus. He said that when police again went to the premises in December 2006, the office had been renovated. There had been a separate internal office created for the appellant inside the larger office room. Otherwise everything else was as it had been.

41 Returning to the documents, many others were tendered, both on the voir dire and in the trial, but it is not necessary for the purposes of this appeal to detail what they were. In the main, the incriminating documents in respect of the particulars under count 1 were really the SUS printed spreadsheet stock records, and the SUS diary pages. They were incriminating in the sense that they were said to show larger quantities of lobster received by the appellant from Mr Stephens. There were also some entries on some of the documents which were given an incriminatory character by the Crown, and which are the subject of specific grounds. We will deal with those in due course. For present purposes, we need only provide a summary of what effect the documents are said to have had in terms of proving the guilt of the appellant.

42 The Rock Lobster Quota Dockets contain two parts, Parts A and B. Part A is completed by the fishing licence supervisor and contains a statement of the vessel, the date, time and place of unloading and weight of rock lobster unloaded. It also contains a statement of the uncaught quota after deduction of the catch unloaded. In the main, Part A on the various dockets tendered was completed by Mr Stephens. Part B is completed by the processor/fish handler or agent. It shows the date and time of receipt, and the weight of fish received. In a number of instances Part B has been completed by the appellant.

43 The Catch Record is completed by the licence supervisor. In each of the forms tendered, the document is completed for a particular vessel, and records (among other things) the "block" area of the catch and the daily number of lobster caught, with a running tally until the vessel in unloaded. In this case all were completed by Mr Stephens himself. The Fish Transfer Certificates or Fish Receipt Dockets show the date, time and supplier identification for lobster received by SUS at its Melbourne premises, and the weight of that lobster. They do not exist for two of the particulars; of those which do exist, most, but not all, have been signed by the appellant.

44 As to each particular to which they relate, up to this point these documents are internally consistent in relation to the weight of lobster caught by Mr Stephens and received by the appellant.

45 For the first particular under the primary count, the document said to reveal the actual weight of lobster caught and received, as distinct from the declared weight of 702kg, was a tax invoice/statement to SUS from the partnership showing payment for 835kg of lobster at $48 per kilogram. This is P18. Attached to that tax invoice is P18A which is a bank deposit slip in the name of the partnership showing a deposit of $40,080. The evidence on the voir dire showed that P18 and P18A were in "a green file tax folder" which was handed to police on a search of SUS premises on 8 August 2006.

46 As to particular 2, the document relied upon by the Crown as showing the actual weight of lobster caught and received, as distinct from the declared weight of 2,239kg was a copy of one of the SUS printed weight documents with handwriting on it: P24. This was found by police officers, along with other partnership documents, during a search of the Stephens' home on 5 February 2006. In relation to all documents found at the home, the trial judge said that some were in cupboards and shelves in what appeared to be an office in the corner of the lounge room, and some were in archive boxes in a bedroom. P24 appears to be a faxed version of a document. The paper is the the old style thermal fax paper. The printed part shows a total weight of lobster of 2,649.35kg, that total figure being broken down into eight separate weight categories. There appears to have been two sets of handwriting, in the same hand, on the original as faxed. P24 shows a copy of a handwritten notation "to be adjusted" with the suggestion that 2,239kg are to be paid for @ 37 = $82,843. To quote from par[21] of the trial judge's reasons:

"It also includes the same information in relation to the payment of that amount by two cheques as is written on the abovementioned Tax Invoice/Statement. This information appears to be written by the same hand on both documents. On the photocopy document itself, again in what appears to be the same hand, the following has been written: '2649.35 - 2239 kg = 410.35 kg @ 35 = $14,362.25'. A further handwritten addition on the document as photocopied is some Chinese characters followed by '2239 kg'. It is agreed, for the purposes of the voir dire, that these characters mean 'report or declare'.[5]"

47 As to particular 3, the document relied upon by the Crown to show the real weight as distinct from the declared weight of 1,571kg was one of the "diary" pages containing a number of entries relating to three consecutive dates: P35. This was actually a page in a loose-leaf cliplock folder found by police at the office of SUS on 4 December 2006. A bound diary was found at the same time. Both were located in a metal two-door cabinet in the centre of the office, together with a number of other records of SUS. The folder contains pages detailing quantities of lobster and other fish received from specified persons on dates between, it would seem, 6 December 2002 and 29 June 2003. There are about 60 pages and 500 entries. Similar entries are recorded in the diary, but in the words of the trial judge "in a more sporadic manner". P35 has an entry for "20/12" relating to "Phil Stephen", showing a total of "1,773.77" for lobster, which quantity was broken down into eight categories of "A", "B", "C", "D", "D1", "E", "M" (sic) and "Dead".

48 Similar pages, P45 and P55, are relied on by the Crown in relation to particulars 4 and 5. There is also what seems to be an odd page from a Catch Record Logbook. This is P44, which of course relates to particular number 4. There are some relevant notations on it, with which we will deal in due course.

49 As to each of particulars 3 to 12 inclusive, the principal incriminating document is one of the spreadsheet stock records. These spreadsheets and similar ones were found on 8 August 2006 at SUS premises by police. At par[38] of the reasons, the trial judge described the location of these spreadsheets as follows:

"An employee, Julie Szeto, directed [the police] to archived records of the business in the ceiling above the factory floor. One room also contained a large compactus filing system. There were between 30 and 50 boxes of archived records. The records in the boxes included computer generated printouts of spreadsheets stapled together in monthly batches. One of the batches had the word 'inventory' written on it."

50 The spreadsheets which became exhibits in the trial (and which by their numbering can be seen to relate to counts 3 - 12), are P46A - C, P56A/C, P66A/C, P76A/C, P86A, P96A/B, P106A/B, P116A and P126A.

51 The spreadsheets appear to show the receipt of fish of various descriptions on particular dates from, in some cases, Mr Stephens alone, and in some cases, Mr Stephens and other fishermen. (The documents actually variously refer to "Phil Steven", "P Steven", or "P Stevens"). Relevantly, the spreadsheets divide the total amount of lobster into six different weight categories, together with a "B/G" category and a "Dead" category. Other SUS documents tendered on the voir dire and in the trial show what might be a classification system with six weight categories ranging from 0 - .6kg to "over 2kg", along with "Weak" and "Dead". The spreadsheets also record the disposal of fish to named businesses or entities, many of which appear to be restaurants. A running balance of the various fish is maintained.

52 Obviously there was an issue in the trial as to the weight the jury should attribute to what were said to be representations of fact in the "incriminating" documents. The appellant neither adduced nor gave evidence on the voir dire or in the trial.

Appeal against conviction - evidentiary grounds

53 The ground alleges that the trial judge erred in law, fact or both in admitting into evidence the relevant representations contained in exhibits P18, 18A, 24, 35, 44, 45, 46A - C, 55, 56A/C, 66A/C, 76A/C, 86A, 96A/B, 106A/B, 116A and 126A. As amended, the particulars of the alleged errors set out in paragraphs (b) to (e) are that:

• in relation to the exhibits, other than exhibits P18 and P18A, the trial judge failed to expose any or any adequate reasoning for holding that the exhibits, and the relevant representations therein, satisfied the requirements of the Evidence Act, s69, or alternatively that the trial judge found that the exhibits satisfied the factual requirements of s69, which findings were not reasonably open on the evidence - ground 1(b)(i) and (ii);
• in relation to P44, the trial judge wrongly concluded that the record in question was the last of numerous similar records contained in the Rock Lobster Catch Record Logbook - ground 1(c);
• in relation to all exhibits, the trial judge wrongly imposed an onus on the appellant to show that the Crown's failure to call as a witness the maker of the relevant previous representations therein, was without reasonable cause - ground 1(d);
• alternatively, if the onus was on the appellant to show that the Crown had no reasonable cause not to call the relevant witnesses, the trial judge erred in finding that the appellant knew or could have established the identity of most, if not all, of the relevant witnesses, and in holding that the appellant was obliged to identify to the Crown the makers of the relevant previous representations - ground 1(e).

Ground 1(b) - a failure to give adequate reasons; alternatively, findings of fact not reasonably open

54 Central to both aspects is s69(1) and (2) of the Evidence Act which provide as follows:

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document, so far as it contains the representation, if the representation was made -

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact."

55 The appellant complains that the trial judge, other than in relation to P18 and P18A, failed to expose any or any adequate reason for holding that the exhibits, and the relevant previous representations therein, satisfied the requirements of s69. Notwithstanding that no complaint about lack of reasons is made in relation to P18/P18A, it is convenient to set out what the trial judge said about where they were found and their context. This encapsulates the s69 findings. At par[10], his Honour said that the documents were from a folder which was made to hang in a filing cabinet, and that an identification tag had been attached to what was the top of the folder when in the hanging position. "Phil Stephens" had been written on one side, with "P A & J G Stephens", on the other. The employee of SUS who provided the folder was probably a person by the name Lai Fong (Julie Szeto).

56 At par[11], the trial judge went on to say that the hanging folder contained many invoices expressed to be from P A and J G Stephens to SUS covering a period in excess of six years, and that it appeared that the first invoice in the folder is dated 5 July 1999 and the last is dated 21 September 2005. His Honour said "In the main, the invoices bear notations that indicate that they have been checked and paid. The notations appear to have been made by employees of Southern United".

57 The first exhibit to be considered under this part of ground 1(b) is P24, one of the SUS printed weight documents dated 10 December 2001 with handwriting on it. We have already set out the evidence before the trial judge as to where it was found. Additionally, at par[25] of his reasons, the trial judge said that as the handwritten additions on the photocopy appear to be in the same hand as those on other SUS documents, he assumed that it was a document of SUS, and that the photocopy was provided to a representative of the partnership.

58 As to the application of s69(2) to P24, the trial judge said:

"26 Turning to s69, I am satisfied:

• that the Weight Document forms part of the records belonging to and kept by the partnership in the course of, or for the purposes of the business of the partnership; and
• that the representations contained in the Weight Document were made by persons who might reasonably be supposed to have personal knowledge of the facts asserted therein, or, on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted facts."

59 The trial judge went on to deal with submissions which counsel for the appellant had made to him based on passages from the judgment of Franki J in Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647. His Honour noted that the legislation under consideration in that case was not identical to the Evidence Act, s69, but was sufficiently similar for decisions referable to it to be of assistance. His Honour noted that the comments of Franki J relied on were substantially addressed by Drummond J in The Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595, in which Drummond J was dealing with the question of whether a statement made in a letter sent to a business run by an entity, Sailbay, was admissible as evidence of the truth of the matter stated in that letter, by reason of it being a record of the business.

60 As the trial judge's adoption of the approach taken by Drummond J may be relevant to further issues in this appeal, as well as the particular document presently under consideration, we will set out the entirety of the passage of Drummond J's judgment which the trial judge set out at par[27] of his reasons. The reference by Drummond J to the Evidence Act is a reference to the Evidence Act 1905 (Cth), s7B(1)(a) and (b) which find their equivalents in s69(1)(a) and (b) of the Evidence Act 2001.

61 The particular passage appears at 42 FCR 597 - 598 and is as follows:

"The letter, not being made by a Sailbay officer, cannot be said to be made in the course of either of Sailbay's businesses. More difficult is the question whether it was made for the purposes of either or both of those businesses. In Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 Franki J, in giving various rulings on the legislation here in issue, said (at 659):

'In general, a statement of fact in a letter from A to B found in the files of B is not admissible as a business record of B merely because it was filed and kept by B. This is because statements in the letter are not made in the course of, or for the purposes of, B's business.'

No-one, I think, would dispute what Franki J had to say there, particularly in view of his emphasis on what 'merely' appears. However, at the same page, his Honour went on to say:

'An invoice may be a communication and, if relevant, admitted on the basis that it is not evidence of the truth of its contents. In the case of an invoice filed in the records of B with the word 'Paid' or other note written on it, the whole does not become a business record of B merely because the word 'Paid' is written on it. The document should be treated as a communication, and any statement of fact in the note, if made by a qualified person, will be admissible as evidence of that fact under Pt IIIA of the Act.'

If his Honour is there to be taken as holding that a document made by a person outside the business and received by the business can never meet the requirements of s 7B(1) unless the truth of what is recorded in the outsider's document is acknowledged by some appropriate person acting on behalf of the recipient's business, with respect, I cannot agree with that.

There is nothing in the wording of s 7B(1)(a) that requires a document to be a document created within the business in question before it can qualify as a document that 'forms part of a record of (that) business'. Moreover, par (a)(iii) and (iv) of the definition of 'qualified person' in s 7A(1) of the Evidence Act show that documents generated by outsiders to a business, including outsiders in relationships more remote than contractual ones, can nevertheless meet all the requirements of s 7B(1), including s 7B(1)(a).

I have said that any need for acknowledgment of the reliability of the document is met by evidence that satisfies s 7B(1)(a). It is the evidence of the location of the document in a record system, formal or informal but a system nevertheless, kept by the business, that meets any such requirement of acknowledgment. There is, in my view, no justification for implying into the section some additional requirement for acceptance by the business of the accuracy of the facts recorded in a document made by an outsider, before it will be admissible.

However, the question of admissibility of a document under s 7B will depend in large part upon the nature of the document in question. There is a difference, it seems to me, between an invoice and a letter received by a business from an outsider. If the evidence shows that in the case of an invoice, for example, it was kept in a file of invoices sent by outsiders who have supplied goods and services to the business and that the invoice purports to record the supply of goods or services of a kind commonly used by the business in the course of its activities, that would, I think, be sufficient to satisfy s 7B(1)(b). Such a document could fairly be said to be made for the purposes of the recipient business although it was also made in the course of and for the purposes of the other business that supplied the goods or services listed in the invoice."

62 The trial judge said that he agreed with the approach taken by Drummond J, and "consistent with it" concluded that P24, including the handwritten annotations made on it, was prepared for the purposes of both SUS and the partnership. His Honour said that it was in the nature of an invoice, and contained information of quantities received from the partnership and of payments made to the partnership by cheques for one quantity, and a further amount due or paid to the partnership for another quantity. Accordingly, it was admissible as a business record of the partnership.

63 The appellant concedes that his Honour's recital of the circumstances in which the document was found is a sufficient "recital of facts ... to comprise a statement of reasons in relation to the s69(1)(a)(i) requirement". The appellant argues however that the same cannot be said in relation to the remaining two requirements; that is, s69(1)(b) and 69(2). It is argued that it was incumbent upon the trial judge to give reasons in circumstances where there was no evidence as to who prepared the document, for what purpose, or when it was prepared. Those obligations were greater in relation to the handwritten notations on the document.

64 The next document is P35 which, it will be recalled, is a page from a loose-leaf folder found at the office of SUS. It will also be recalled that a diary was found which contained similar entries. The trial judge noted that a few pages in the dated portion at the commencement of the diary appear to relate to other matters of relevance to SUS such as the phone numbers of apparent employees. As to the application of s69 to the folder and diary documents, his Honour said:

"33 I conclude that the Folder and the Diary form part of the records belonging to and kept by Southern United in the course of, and for the purposes of its business, and that they contain representations recorded in the course of, and for the purposes of the business. I also conclude that they were made by persons who had or might reasonably be suspected to have personal knowledge of the facts asserted therein, or, on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of those facts. I am accordingly of the view that the particular Folder entry in question is admissible as a business record of Southern United."

65 The appellant submits that this is a simple statement of the necessary conclusions for admission under s69 but without the exposure of any reasoning.

66 The next category of documents dealt with by the trial judge and the subject of argument in this appeal is made up of exhibits P44, P45 and P46A - C. The allegation in particular 4 is that 571kg were declared as having been caught and received on 21 June 2003, whereas approximately 678kg were in fact caught by Stephens and received by SUS. P44 is a page from a Rock Lobster Catch Record Logbook. It appears from the book that it is produced by the Department of Primary Industries, Water and Environment for the purposes of the LMRM Act. The book contains general information about the book itself, instructions on how to complete the catch record, pages of the logbook and then at the back, a rock lobster fishery map dividing the fishery up into numbered blocks.

67 The evidence of Constable Fogarty was that the logbook was found in the wheelhouse of the Southern Leader on 5 February 2006. He said the wheelhouse had cupboards in it, and there were quite a number of documents which were just thrown in those cupboards. The cupboards were within a small confined area of the wheelhouse, and the documents generally within one or two cupboards, he believed on the port side at the back of the wheelhouse.

68 P44 has been apparently used to record something reflected in a series of numbers in a column, but no other required details such as vessel name and month are given. There is a section of the page headed "Fishing Details", and in a column in that section for recording "Depth Fished", there is a list of numbers. Under those numbers there is what seems to be a total of 678.6, (although precise addition of the numbers gives a figure of 678.55). The column for "Numbers Taken" is blank. To the right, in a column headed "Details of Numbers of Rock Lobster", three numbers appear one under the other: "571" and then two dollar amounts. The first amount is $25,124. In this respect, the Crown relied on a Tax Invoice/Statement dated 21 June 2001 referable to the purported catch of 571kg, which shows payment by SUS for that quantity of lobster for $25,124.

69 In argument on the voir dire, Crown counsel accepted the proposition that P44 seems to have "been used as a bit of scrap paper", although that concession seems to have been at least modified. In the written submissions Crown counsel suggests that the page had been clearly used to record significant details of the business, although in oral argument it was acknowledged that the page was not "used for its designated purpose".

"39 ... The record in question is the last of numerous similar records contained in a logbook of the Southern Leader. I conclude that it forms part of the records belonging to or kept by the partnership in the course of, and for the purposes of its business, and that the relevant page is a representation made or recorded in the course of, and for the purposes of the business. I conclude that it was completed by a person who had, or might reasonably be supposed to have had, personal knowledge of the facts asserted in it, or on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of those facts. It is admissible as a business record of the partnership."

71 The appellant submits that there is no statement of reasons as to why it is that the relevant representations were made or recorded in the course of or for the purposes of the business. It is argued that it is not possible to find any statement of reasons sufficient to justify the s69(2) requirement.

72 P45 is a page from the folder not dissimilar to P35 in that it shows a handwritten notation of six categories of what seem to weight figures, referable to "Phil". It does not show a total but it is 673.65 (asserted by the Crown to be about 678). The trial judge said that it was admissible for the same reasons given in relation to P35. It follows that the appellant's arguments as to this document are the same as for P35.

73 P46A - C are the SUS spreadsheet stock record pages dated 21 June 2003. (P46A shows the same figures as are on P45.) It will be recalled that these were found in monthly batches in the boxes of archived records in the room above the main office. After detailing where these records were found, the trial judge dealt with their admissibility as follows:

"38 ... I conclude that each of these [monthly] batches forms part of the records belonging to or kept by Southern United in the course of, or for the purposes of its business, and that they contain representations made or recorded in the course of, and for the purposes of the business. I also conclude that they were recorded by a person who had, or might reasonably be supposed to have had, personal knowledge of the facts asserted therein on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted facts. I am satisfied that these documents are admissible as business records of Southern United."

74 The appellant submits that it might be accepted that the recital of the finding of the records was sufficient to demonstrate or comprise an adequate statement of reasons for the purpose of s69(1)(a)(i), but there is no explanation to justify the conclusion arrived at in relation to s69(2).

75 The remaining documents are P55 which is a diary page with an entry similar to those previously discussed in relation to the loose-leaf folder and the diary, and the SUS spreadsheet stock records for particulars 5 - 12. As to P55, and all of the other exhibits for particulars 5 to 12 which were the SUS spreadsheet records, the trial judge said that the nature and content of the documents relied upon for the purposes of each of the particulars, and the circumstances in which they were found, were sufficiently similar to say that for the reasons he had previously given, the documents were admissible. It follows that the appellant's arguments as to these documents are the same.

76 The Criminal Code, s402(1), is in the following terms:

(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."

77 The alleged failure on the part of the trial judge relates to reasons in relation to an interlocutory ruling on the admissibility of evidence. Counsel for the appellant did not, either in written or oral submissions, attempt to explain the consequences of the alleged failure in terms of the intervention of this Court. Section 401 of the Code does not authorise appeals against interlocutory orders and rulings, and although it is not the judgment or order which is sought to be set aside, in any event a ruling concerning the admissibility of evidence almost exclusively would not be a judgment or order within the meaning of s402(1): see for instance R v Steffan (1993) 30 NSWLR 633; R v Piper [2005] NSWCCA 134 at [10] - [11] and Police v Dorizzi [2002] SASC 356.

78 It follows that for the appeal to succeed on this ground, it must be shown that there has been a miscarriage of justice as a consequence of the alleged failure. Whilst the failure to give reasons undoubtedly may amount to an error of law in some contexts, the failure to give reasons for an interlocutory ruling in a criminal matter will not necessarily lead to an appeal being allowed. In Evans v R [2007] HCA 59; (2007) 235 CLR 521, Gummow and Hayne JJ said at 531 - 532 [34]:

"Not every ruling given at trial must be accompanied by reasons. Many issues about the admissibility of evidence are best resolved by simply allowing or disallowing a question to which objection is taken. But there are some evidentiary issues that arise in a trial where it is desirable to give reasons. It is not possible to formulate a single criterion of universal application that distinguishes between issues whose resolution should be accompanied by a statement of reasons and those where reasons need not be given. It suffices to say that cases in which a discretion must be exercised or the resolution of the issue depends upon some intermediate conclusion of fact or law will more likely warrant the giving of reasons than will an issue about the relevance of a question or the form in which it is posed."

79 In the same case, Heydon J (with whom Crennan J agreed) at 595 [245] referred to the view of the court below that the failure to give reasons in that case was not such a fundamental procedural irregularity as to warrant setting aside the convictions. His Honour said, "This was because, as the Court of Criminal Appeal correctly said, the relevant applications were usually argued at length, so that the evolving views of the trial judge were apparent from what she said in argument."

80 At 595 - 596 [246], his Honour continued (omitting references):

"In criticising this reasoning, counsel for the accused cited several authorities. But, leaving aside cases concerning trials by judge alone, where statute may compel the giving of reasons, the cases cited all turn on the need for reasons in relation to final orders, like a sentence, an increased sentence, an order denying an entitlement to workers' compensation and an order awarding damages. It is in that type of case where the primary purposes for giving reasons have operation - to enable the parties to see whether their arguments have been understood and what the decision is based on, to further judicial accountability, and to ascertain how cases will be decided in future. Counsel for the accused did cite cases indicating that reasons must be given where 'that is necessary to enable the matter to be properly considered on appeal'. Although many rulings on evidence or other interlocutory rulings in criminal jury trials are unlikely to form the basis of an even faintly arguable appeal, in relation to significant rulings, where a request for reasons is made, at least brief reasons should be given. But where the purpose of the reasons is to enable appellate courts to consider the appeal properly, if that purpose can be achieved in other ways, as where the course of argument makes the reasons plain, the failure to give reasons, though erroneous, will not constitute a miscarriage of justice."

81 His Honour went on to observe that the thing that matters is that miscarriages of justice be avoided, as distinct from procedural errors which are regrettable but do not cause any miscarriage of justice, saying that:

"The failure to give reasons can be procedurally unfair, but procedural unfairness is not to be looked for in the air: counsel for the accused in this Court failed to demonstrate how either his predecessor or their client was in any way worse off because of the failure to give reasons in this case."

82 Those observations should be applied and this aspect of ground 1 should not succeed. Without accepting that there has been a failure to provide adequate reasons for the conclusions reached, the appellant has not sought to demonstrate how he has been in any way prejudiced or disadvantaged because of any failure on the part of the trial judge to give any adequate reasons for the rulings. Additionally, in our view sufficient of his Honour's reasoning process appears from a combination of his comments made during submissions, the recitation of the facts and circumstances relating to the documents as business records, and what may be inferred from the documents themselves, a matter to which we will shortly turn. In any event, this Court can resolve for itself the real issue at stake.

83 This aspect of the appeal challenges the making of three findings as to each of the documents under consideration. Those findings reflect the criteria in s69(1)(b) and s69(2) respectively. They are:

• that in accordance with s69(1)(a) the document formed part of the records belonging to or kept by either SUS or the partnership (or both) for the purposes of a business;
• that the document contains a previous representation made or recorded in the document in the course of, or for the purposes of either or both those businesses;
• that the representation contained in the document was made by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, or on the basis of information directly or indirectly supplied by such a person.

84 The question posed by this aspect of the appeal is whether the trial judge's findings that the three criteria were met in relation to each document were reasonably open on the evidence. The appellant submits that in the absence of any explanation of the circumstances of the preparation of the document, and some even slender information as to who prepared it, and when, and why, there is simply an insufficient evidentiary basis to make any of the inferences which were made by the trial judge.

85 There is ample authority as to the scope of the operation of s69 and its equivalents. It is remedial legislation of wide import and should be construed liberally: Atra v Farmers & Graziers Co-op Co Ltd (1986) 5 NSWLR 281 at 286 and the cases there cited, Lewis v Nortex Pty Ltd (In liq) [2002] NSWSC 1083 at [4] and Ringrow v BP Australia Ltd [2003] FCA 933; (2003) 130 FCR 569 at 572 [17]. In both s69(1)(a) and s69(1)(b), the requirements fashioned by the phrase "in the course of, or for the purposes of, the business" are ones which are to be liberally approached. The phrase as used in s69(1)(a) encompasses documents which go beyond documents by which activities of the business are recorded, and include those relevant to the conduct of the business: Southern Cross Airports v Chief Commissioner of Crown Revenue [2000] NSWSC 349 at [41] - [44].

86 The factual matters which would inform the fact-finding exercise under s69(1)(a) would also be relevant in relation to the exercise under s69(1)(b). The nature of the document and the circumstances of it being kept, would assist in determining whether a representation made in the document was made or recorded in the course of, or for the purposes of, the business. In particular, the fact that the representation was made by a person other than an agent or employee, or by someone associated with the business, is not at all determinative of the factual question. It is sufficient of course if the representation is made for the purposes of the business.

87 In relation to s69(2), the Court is able to draw inferences from the form of the document and the nature of the information contained in the representation: Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 at [19]. In any event, s183 of the Evidence Act enables a court, if a question arises about the application of a provision of the Act in relation to a document, to examine the document and draw any reasonable inferences from it. Further, for the purposes of the determination under s69(2), it is not necessary that the person who made the representation, or the person who supplied the information on the basis of which the representation was made, be identified.

88 In Guest v Federal Commissioner of Taxation [2007] FCA 193 Heerey J said:

"25 The terms of s 69(2)(a) do not suggest that it is an essential precondition of admissibility that the 'person' in question be identified. The ordinary meaning of the language is that it is sufficient that the person who made the representation, whoever he or she is, had or might reasonably be supposed to have had, personal knowledge of the asserted fact. The policy behind the provision is clear enough. Routine business records, made before any legal proceeding arises or is contemplated (cf the exception in s 69(3)), have an inherent likelihood of reliability which outweighs the common law's aversion to hearsay evidence where the maker of a statement cannot be tested by cross-examination. The utility of s 69 would be greatly diminished if it were necessary to locate among large organisations, perhaps over a long period of time, persons who made representations, often in circumstances where the practical needs of the organisation did not require any identification at the time the representations were made.

1. Prior to the Evidence Act, all Australian jurisdictions had legislation based on provisions of the Evidence Act 1938 (Imp) which rendered admissible statements made in documents outside court where, inter alia, the document formed part of a continuous record. Examples were the Evidence Act 1898 (NSW) ss 14B-14C and the Evidence Act 1958 (Vic) s 5. Such legislation required the maker of the statement to be called as a witness, although that requirement could be dispensed with in certain circumstances, such as death or absence 'beyond the seas'. The present s 69, however, says nothing about calling the maker of the statement as a witness. It is therefore hard to see why one should read into the section an obligation to identify the 'person' where there is no need for that person to be called."

89 In support of the proposition, his Honour referred to Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303; Duke Group Ltd (in liq) v Arthur Young (1990) 55 SASR 11 and Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 at [197]. See also Forbes Engineering (Asia) Pty Ltd v Forbes (No 4) [2009] FCA 675 at [104] - [105] where Collier J, after referring to Guest at [25], noted that the absence of the author of a document, or anyone who could explain it, as a witness in the proceedings, was however an issue which went to the weight to be attributed to it. Additionally, for s69(2) as for s69(1)(b), there is no requirement for the person who had, or might reasonably be supposed to have had, the requisite knowledge to have had any particular relationship with the enterprise whose business is involved: Vitali v Stachnik [2001] NSWSC 308 at [8].

90 We are not persuaded that any of the findings necessary for the admission of the representations in the various documents was not reasonably open. For that admission, the trial judge had to be satisfied of the matters set out in s69(1) and (2) on the balance of probabilities, taking into account the importance of evidence in the proceedings, and the gravity of the matters alleged in relation to the question: s142 of the Evidence Act. There is nothing at all to suggest the trial judge was unaware of these considerations; on the contrary, at [19] of the reasons he expressly acknowledged the importance of the documents to the prosecution's case.

91 As has been demonstrated, the trial judge was entitled to proceed solely on the basis of inferences to be drawn from the circumstances in which the documents were found, those circumstances including physical location and the context of that location, or whether they were handed to the officers upon request for the production of records. Additionally, the trial judge was entitled to rely solely on what inferences might be drawn from the nature of the representations and how they appear on the relevant documents.

92 As to the documents found at the SUS premises, slightly different considerations apply to each document or each set of documents. Indeed, Mr Tree SC conceded that the submission in respect of the bank deposit slip, P18A, was somewhat over enthusiastic. P18 is a copy of the invoice to which P18A obviously relates. The circumstances of its location have previously been set out, and the particular approach in law is that set out in the Tubby Trout case. The relevant findings were reasonably open. Nothing further needs to be said about P18A.

93 P24 is the faxed copy located in the Stephens' home with different handwriting notations on it. All of the findings required for its admission are reasonably open having regard to the circumstances in which it was located, as previously set out, what is recorded on it, and the manner in which those things are recorded.

94 Similar comments apply to P35, P45 and P55, being the pages from the loose-leaf folder or the diary. The circumstances in which those records were found and the information recorded in them is sufficient to enable inferences to be drawn and the relevant findings made. The spreadsheets encompassing the exhibit numbers P46 to P126, were found in monthly batches in boxes of archived records to which the police officers were directed by office staff, and that is a sufficient basis for the findings of fact required for s69(1). The nature of the information recorded in them, given the circumstances of their location, is sufficient for the findings of fact for the purposes of s69(2).

95 In this Court, the appellant attempted to demonstrate the inaccuracy and lack of integrity of these spreadsheets by pointing to internal inconsistencies and illogicalities, and conflicting information with the purported corresponding entries in the loose-leaf folder or diary pages. The Crown attempted to demonstrate the contrary by the same exercise. Nothing emerged to undermine the findings of fact required for the admission of the representations under s69. Such issues undoubtedly went to the weight to be attributed to the documents, but not to their admissibility.

96 The remaining document is P44. It is a page from a Catch Record Logbook. It does not appear to have been used for its proper purpose, although there are some figures recorded on it which are similar in nature to figures appearing in logbook pages which seem to have been formally completed. It was found in the wheelhouse of the partnership fishing vessel as part of an actual logbook. Previous pages in the logbook have, on their face, been properly completed. The conclusions reached by the trial judge in par[39] of his reasons, which has previously been set out, were reasonably open to him.

97 It follows that ground 1(b) fails in its entirety.

98 We have already set out the trial judge's conclusions in relation to the admissibility of P44. It will be recalled that his Honour said the record in question is the last of numerous similar records contained in a logbook of the Southern Leader, and concluded that it formed part of the records belonging to or kept by the partnership in the course of, or for the purpose of its business. The appellant says that the reference to similar records seems to be the sole basis for his Honour's conclusion, and in this part of the first ground, the factual finding that the record was the last of numerous similar records in the logbook, is challenged.

99 We need to further explain P44, which has already been examined to an extent. The logbook is made up of numbered pages designed to record monthly catches. There is one number for each month with two pages referable to the same number. There is a pink and a white copy of each separate page for each number. The first page is pink and is carbonised, so that what is written on it appears on the white page underneath. It seems that the pink page is sent to the Department, whilst the white page remains in the book. Of the previously described notations, the entry "571" appears to be a carbon imprint, whereas the two dollar figures are in pen.

100 The book in which P44 is located commences with the number 14847. There is a white page 1 of 14847 and a white page 2 of 14847. This pattern is repeated up to and including 14857, with the last page before P44 being white 2 of 14857. P44 is white page 1 of 14858, the pink obviously having been written on as reflected on the white copy, and removed. The pink and white pages 2 of 14858 are still in the book, as are both pages for the last number in the book; 14859.

101 The appellant argues that in no sense were the entries on the page a catch record of the kind ordinarily recorded in the book, and that it is "simply wrong" to say that the record in question is the last of numerous similar records contained in the logbook. In our view, the submission is based on a misunderstanding of what his Honour was meaning to convey. It might not be strictly correct to say that P44 was the last of similar records in the book. It is correct to say it does not purport to be a properly completed monthly catch record, although the numbers appear to more closely resemble fish weights than anything else. It is also correct that none of the preceding pages in the logbook had notations similar to the "571" and the dollar figures. Some of the preceding white pages are fully completed, some are completely blank, and some have "Nil" written on them.

102 However, we are not able to see that the trial judge has made any factual error, or at least any error having material consequences. The trial judge was entitled to have regard to the fact that the book was found in the wheelhouse of the Southern Leader. His Honour was also entitled to consider where the page was in the book, the previous entries in the book, and the handwriting as compared to that on P44. In the circumstances, the use of the word "similar" may have been a little ill-advised, but we are not persuaded that a material error was made. There is no merit in ground 1(c).

Ground 1(d) and (e) - questions of onus and findings of fact under s169(1)

103 It will be recalled that the appellant requested the Crown to call as witnesses in the trial the maker of each and every representation relied on by the Crown. This request was made under s167 of the Evidence Act which provides as follows:

"167 Requests may be made about certain matters

A party may make a reasonable request to another party for the purpose of determining a question that relates to -

(b) evidence of a conviction of a person for an offence; or

(c) the authenticity, identity or admissibility of a document or thing."

104 Section 166 of the Evidence Act provides a definition of "request". It means a request that a party (the requesting party) makes to another party to do one or more of a number of things which include:

"(f) in relation to evidence of a previous representation, to call as a witness the person who made the previous representation."

105 It is not clear what communication the Crown did or did not have with the appellant's solicitors, but in any event, in the voir dire the appellant applied for an order under s169(1)(c). That is in the following terms:

(1) If a party, without reasonable cause, failed or refused to comply with a request, the court, on application, may make one or more of the following orders:

(c) an order that the evidence in relation to which the request was made is not to be admitted in evidence;".

106 Section 169(4) and (5) is in the following terms:

"(4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if -

(c) the person to be called as a witness is not available.

(5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account -

(a) the importance in the proceeding of the evidence in relation to which the request was made; and

(b) whether there is likely to be a dispute about the matter to which the evidence relates; and

(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and

(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and

(e) if the request relates to evidence of a previous representation, whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and

(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and

107 In the trial judge's reasons for his ruling on 19 July 2011, his Honour dealt with the application in the context of ruling on the admissibility of P18 and P18A. His Honour said:

"16 In reliance on the Notice, the accused requires the prosecution to call as witnesses the persons who made the representations in the Tax Invoice/Statement and the Deposit Receipt (1/18 and 18A). The prosecution is unable to identify these persons or the persons who made the representations in other documents to which I will refer. Accordingly, it cannot comply with the accused's request. It may be that some of the persons employed by Southern United, who are to be called as witnesses on the accused's trial, made one or other of the representations in question, but the prosecution is presently unable to establish that this is so."

108 His Honour set out s169 of the Evidence Act and continued, still in the context of the first particular of the primary count on the indictment:

"18 For present purposes, I conclude that it can be inferred from the documents referred to that the accused conspired with Phillip Stephens to falsely declare that the quantity of rock lobster caught was 702 kilograms when, in fact, it was 835 kilograms. The Tax Invoice/Statement and the Deposit Receipt are central to the drawing of this inference. Accordingly, the question of the admissibility of these documents is of crucial importance to both parties.

20 I turn to related matters. It is apparent, from the court books and the exhibits on the voir dire, that the prosecution proposes putting into evidence a substantial number of documents as business records. Against this background, it can be seen that the request made in the Notice is potentially oppressive and if pursued without refinement would have the capacity to undermine the objectives of the Evidence Act, s69, which provides for the admissibility of business records. ... It is noteworthy that to a significant extent, the accused has not sought to rely on the Notice in an oppressive way. For the purposes of the application before me he has confined his request to about 22 specified documents. Nonetheless, difficulties remain with the revised approach adopted by the accused. Section 167 authorises 'a reasonable request ... for the purpose of determining a question that relates to ... a previous representation'. The determination of whether a request is reasonable involves a consideration of the question to be determined. The Notice does not detail what that question is, and I have not been provided with any supplementary notice that does so with regard to the documents in question. Much the same can be said in relation to the identification of the persons whom the accused wants the prosecution to call as witnesses. Speaking generally, the representations in contention on this hearing are contained in records of the accused's business, and many are handwritten or include handwriting. When interviewed by the police on 4 December 2006 in relation to some of the records, the accused said he could not identify the writing. For example, when shown a blue folder he volunteered that it was prepared 'by a girl' but did not know which girl and said he would have to find out as 'we've got a few girls here'. At a later point he said he would have to look at the records to identify the handwriting on a document. I consider it likely that he knows or could establish the identity of most, if not all, of the persons concerned. The accused has not identified any person he requires to be called referrable to a representation. I note that s166(c) expressly caters for such a request.

21 That the accused has not identified any one of the persons he requires the prosecution to call as a witness, and has not detailed the question to be determined referrable to the maker of any of the representations in question, causes me to doubt that his request is reasonable for the purposes of s167. On balance I am unable to conclude that the prosecution's failure to call any of the unidentified witnesses involved is without reasonable cause."

109 The appellant's first complaint is that the trial judge wrongly imposed an onus on the appellant to show that the Crown's failure to call the makers of the relevant representations was without reasonable cause. The second complaint is that if the appellant bore the onus as to lack of reasonable cause, the trial judge's findings as to the appellant's actual and constructive knowledge were not reasonably open, and in any case it was wrong to hold that he was obliged to identify the witnesses to the Crown.

110 Before proceeding to deal with the ground of appeal, the state of the evidence and other material before the trial judge needs to be examined. There are some unsatisfactory aspects of it, at least as far as the task of this Court is concerned. In par[16] of his ruling, the trial judge said that "the prosecution is unable to identify these persons or the persons who made the representations in other documents to which I will refer". On the hearing of this appeal, senior counsel for the appellant, Mr Tree SC, asserted that the Crown had said in open court that it cannot identify the witnesses. Mr Tree said that this was not challenged, but that this was not to say that the Crown could not have identified the witnesses. The trial judge's finding was said not to "specifically" be the subject of an appeal ground. However, the Crown's position does have some relevance in dealing with this part of ground 1, and to an aspect of ground 2.

111 Difficulties arise because of the paucity of material before this Court. We do not have a copy of any response to the letter of request to the Director of Public Prosecutions. It is not possible to find in any of the material which this Court has, any evidence or assertion by the Crown that it was unable to identify the person or persons who made the representations in the relevant documents. Counsel for the Crown addressed the trial judge in response to the appellant's application, saying it was a "misconceived interpretation of the provisions of the Act". In summary, the point made was that with large businesses such as that of the appellant, many different people over a period of time would be involved in the compilation of records, and it was impractical to suggest that everybody who had made entries or produced a record should be called. It was said that in general terms, it would be very difficult in the case of businesses employing "a myriad of people" to say who had made a particular record.

112 As noted however, we are not able to find in the material before this Court the evidence or the assertion of the inability to identify the makers of the representations relied on. The difficulty is compounded by the fact that some evidence was put before the trial judge as to the identity of the author of the computer spreadsheets. A statement of Julie Szeto was tendered by consent on the voir dire. This Court has been supplied with a copy. In it, she says that it was her job to take handwritten tally sheets on which weights had been written, and to record those weights on a computer spreadsheet. She says that "no one else should enter this [in the spreadsheet]".

113 In the argument before the trial judge, Crown counsel, having made the point which we have just summarised, went on to say that evidence had been tendered from Ms Szeto as to the recording of weight details, and that there was evidence of an attempt to call her but that she was overseas at the time. Crown counsel went on to say, "Well, it's not known by the prosecution that she's kept any records, she's an employee at the business as her proof shows". There was evidence before the trial judge that an attempt had been made to serve her with a witness summons. The discussion before the trial judge then turned to whether the appellant had identified for the Crown, the maker of any of the documents.

114 Presumably, what Crown counsel meant by the statement that it is not known whether Ms Szeto kept any records, was that notwithstanding what she said in her statement, the Crown took a contrary view. That inference might well arise from the fact that Ms Szeto was ultimately not called to give evidence at the trial, apparently because Crown counsel formed the view that she was not a truthful witness. Obviously though, a decision not to call her as the maker of the spreadsheet representations had been made at the time of the voir dire. Otherwise, there would have been no need for the debate to include the identity of the makers of those representations. However, there does not seem to be a point at which the trial judge was directly told that. In this Court, Crown counsel referred to Ms Szeto's statement and to the Crown offer to the appellant to call Ms Szeto so that the appellant could cross-examine her. This offer was not accepted. The Crown's argument in this Court seems to be that it follows from the appellant's failure to accept the offer, that he could not complain about a failure to call the persons who prepared the spreadsheets. That, as Mr Tree observed, is a rather disingenuous approach.

115 In any event, the point remains that the trial judge had evidence in the form of Ms Szeto's statement that it was she who prepared the spreadsheets and was thus, by that statement, identified as the person who had made the relevant representations. Particularly given that statement, even putting it together with Crown counsel's brief apparent comment on its view of Ms Szeto, it is very difficult to see how the broad fact of the Crown's inability to identify all of the persons who made the relevant representations was actually put before the trial judge.

116 There is another factual matter which needs to be examined before turning to the ground of appeal. The trial judge referred to some of the comments made by the appellant in his police interview on 4 December 2006. It seems to have been those comments upon which the trial judge based his view that it was likely that the appellant knows or could establish the identity of most, if not all, of the persons concerned in making the representations.

117 As the trial judge noted, the appellant was shown, and asked questions about, a blue folder. Undoubtedly this was the loose-leaf folder found by police at the SUS office on that day. When asked about it, the appellant said that he did not know anything about it, and had not seen it before. He said that he did not know it and would need to look through it before saying what the figures were. He said that he did not know which girl had prepared it, and said "I need to find out first". He was asked whether he would be prepared to make those inquiries for the police, bearing in mind the caution.

"A Um I'll have a look first because I don't know because we've got a few girls here.

1. Yep.
2. _I'll just, I will look it through - _
3. Alright.
4. _And - _
5. Would you like to look through that now?
6. Yeah (looks through folder). What is that, it's 2010. Well I don't know who is the one to do it.
7. Can you tell me what it is?
8. I try to, I try to, I try to look in through that; it's first time I've seen myself."

119 There was further discussion in the interview about the nature of the information in the folder, and the appellant appears to have taken some time to read through it. He commented that it was one person's handwriting, that he did not know who it was and could not identify it, and that he would need to look at the records to see what he could find in there. He commented about what he believed the figures to be, and said:

"Like I don't know which refers to weight of the lobster so probably the girls we need to um check this (inaudible) girls and I don't know who they are to have done this. Well actually that's the first time I see myself. ... It's um, I can't make anything, anything more - further to explain to you [inaudible]."

120 Later in the interview he was shown the diary which has also been previously referred to in these reasons. He said it was not his handwriting and that he did not know whose it was. When asked if he could identify "anything in particular" he said "some of this, I don't know where some of this, there's not, nothing, I don't know the handwriting so - no nothing". The authorship of the diaries and the content were not pursued further with him. The trial judge had no evidence as to whether the police followed up on their request of the appellant during the interview, that he make inquiries to find out who was responsible for the entries in the folder.

121 The operation and scope of ss167 and 169 of the Evidence Act were considered in the Trimcoll cases: Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324, and on appeal, Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307. Because of the terms of ground 1(d) and an issue in ground 2, a rather detailed analysis is required. The facts were that Trimcoll was a company operating in the building and construction industry. The Deputy Commissioner of Taxation (the Commissioner) brought proceedings against Trimcoll alleging that it made payments to subcontractors, but failed to deduct amounts as required by the Income Tax Assessment Act 1937 (Cth). Payments had been made by Trimcoll to various companies and businesses which had supplied Trimcoll with a "payee declaration" provided for in the legislation, which enabled payment to be made to them without the required deductions.

122 The Commissioner alleged that these companies were not in fact those entitled to receive the prescribed payments, but were merely agents or conduits for third parties who were contractually entitled to the moneys for work performed, but did not hold a certificate entitling them to payment without deduction for tax. Trimcoll filed affidavits which exhibited invoices and payee declarations referring to the holding of the required certificates. Pursuant to s167, the Commissioner requested that Trimcoll call as a witness each of the persons responsible for providing an invoice or payee declaration, and then made an application under s169.

123 At the hearing before Hall J, there was some debate about the pleadings and the state of the evidence Trimcoll was seeking to lead. Trimcoll's defence raised the contention that it was not obliged to make deductions because each of the payees had given to it completed payee declaration forms referring to an exemption certificate. The Commissioner's assertion that there was in fact no contractual relationship between Trimcoll and the payees which had provided invoices and declarations, was not pleaded. Hall J took the view that although no reply had been filed formally raising any ground of fraud, there was some doubt about whether it should have been pleaded, and said that the parties were well aware of the basis upon which the Commissioner proposed to dispute Trimcoll's defence: see [2005] NSWSC 1324 at [107].

124 Hall J's approach to the pleading issue involved consideration of a provision in the Taxation Administration Act 1953 (Cth), which made a statement or averment in a tax recovery proceedings, prima facie evidence of the matter. At [85] his Honour said that the effect of this provision was to effectively shift the burden or onus to Trimcoll, as it would be for Trimcoll to adduce evidence sufficient to displace the prima facie evidence of the Commissioner. Later, at [107] his Honour said that in order to meet such prima facie evidence, it was for Trimcoll to both plead and prove its grounds of defence which established that there was no basis in law for its alleged liabilities.

125 As to the use of the documents, Trimcoll argued that it was relying on the receipt of the documents as such, and not for the purposes of proving the truth of the representations they contained. The Commissioner argued that Trimcoll would be relying on the documents as evidence of the performance of the work described in the invoices, and also sought to support the request as a reasonable one under s167, on the basis that the requests were directed in part to her argument as to the authenticity of the payee declarations and invoices.

126 Hall J noted that although Trimcoll did not propose to rely on the documents as evidence of the truth of the representations identified, it was not to be disregarded that Trimcoll proposed to rely upon the documents for a purpose that was material to its defence, and that while a particular document may not be relied upon to prove the truth of the facts asserted, it may be relevantly adduced for a non-hearsay purpose. At [104] his Honour said:

"[G]iven the issue raised by the plaintiff as to whether the documents evidence genuine transactions, the disclaimer by Trimcoll that it does not rely upon s 69 of the Evidence Act cannot in itself provide reasonable cause for a refusal to comply with the request, given that the defendant plainly relies upon the documents in its defence if only for non-hearsay purposes. ... Accordingly, subject to some matters concerning particular documents referred to in paragraphs [109] to [113], I am of the opinion that the defendant has failed to establish that it had reasonable cause to refuse the plaintiff's requests under s 167." [My emphasis.]

127 In the end result, an order was made in relation to some of the documents not that the evidence should not be admitted, but that Trimcoll should call the persons believed to be concerned in the production or maintenance of those specified. Trimcoll successfully appealed to the Court of Appeal from that order, but Hall J's description of the nature and operation of Division 1 of Part 6 of the Evidence Act (Division 1 of Part 4.6 of the New South Wales Act) was unaffected by what was said in the judgment of the Court of Appeal, and bears repeating.

128 His Honour's observations are set out at pars[40] - [50], an edited version of which, omitting references, is as follows:

"40 The provisions of Division 1 (ss166 to 169) establish a request procedure which is intended to afford, in the circumstances therein specified, procedural protection to parties against whom hearsay or documentary evidence (and other evidence) may be adduced: ...

1. ...
2. In relation to the system established by Division 1 of it is as well to identify the pre-conditions which the requesting party must comply with and the basis upon which an order may be made by the court pursuant to s169 of the Act. They may be stated to be as follows:-

(a) The request must be one made by one party to another to do one or more of the matters set out in paragraphs (a) to (g) of s166 (which deal with the meaning of 'request' in Division 1 of Part 4.6).

(b) The request to the party in question must be 'a reasonable' one.

(c) The request must be one for the purpose of determining a question, namely, a question that relates to:- [one of the matters set out in s167 (a) (b) and (c)].

1. In relation to the above pre-conditions, the following matters are noted:-

(a) the provisions of s166 and s167 (the request provisions) distinguish between a document, a thing and a previous representation. That distinction may in particular circumstances be important in the application of the 'request' provisions;

(b) the scope or reach of the request provisions in relation to previous representations can be extensive. This is so as the term representation encapsulated within the expression previous representation embraces both express and implied representations as well as representations to be inferred from conduct: see Dictionary definitions (Part 1) in the Evidence Act.

(c) Generally speaking, where validly made in accordance with s167, a request is the preliminary step in a process whereby the maker or makers of a document or thing or the maker(s) of a previous representation may be required to be called as a witness. The calling of a person who made a document or representation may be a necessary protective measure in order to establish the genuineness or veracity of either. This is to be achieved by exposing person(s) who made the document or representation to cross-examination by the party against whom the documentary evidence, thing or previous representation is sought to be adduced.

1. A request made pursuant to s167 by a party must, as noted, be both a reasonable one and made for a purpose as specified, namely, so as to permit a court to determine a question (which may be related to or subjacent to an issue in proceedings) and one that 'relates to' [one of the matters set out in s167 (a) (b) and (c)].
2. The phrase 'relates to' involves a nexus of a broad nature: ...
3. There is no criteria specified by which a request may be determined to be a reasonable one.
4. One matter that bears upon the determination as to whether a request is reasonable will be whether there is a genuine dispute about a representation contained in the particular document or record.
5. A court will doubtless have regard to the issues in the proceedings, in particular legal and factual issues arising on the pleadings and to any relevant evidential issues arising from the evidence sought to be adduced in determining whether a question relates to one or other of the matters set out in paragraphs (a) (b) and/or (c) of s 167.
6. The provisions of Division 1 are directed fundamentally to ensuring that documentary evidence, things or representations which one party wishes to tender or adduce and rely upon against the other can in particular circumstances be subjected to testing.
7. In so providing, Division 1 affords a measure of protection against documents or other records being accorded the evidential significance that they may otherwise carry on their face where the circumstances of the supply of information contained within them or attending the making of them or both (or the representations they evidence) indicate a reason to question or dispute what the records would otherwise establish or tend to establish."

129 In the Court of Appeal, Basten JA (with whom Spigelman CJ and Ipp JA agreed) held that if Hall J intended to find that the averment provision placed any legal burden of proof on Trimcoll, he was in error: [2007] NSWCA 307 at [46]. At [48] Basten JA said that the Commissioner had put in issue the fact that the recipients of moneys paid by Trimcoll did not receive the moneys pursuant to any contractual entitlement, and bore the onus of proving it without the benefit of the averment provisions. His Honour continued, "This would need to be borne in mind in considering the discretionary factors relevant to the exercise of the power to make orders under s169 of the Evidence Act, if that provision were engaged ...". Later, Basten JA observed:

"70 Once that conclusion in relation to onus is rejected, there is no sound reason for rejecting Trimcoll's claim that the Commissioner bore the onus of establishing the preconditions to the obligation to pay the respective penalties which matters should be appropriately pleaded. If that course had been taken, the evidential onus might have shifted, with consequences for the exercise of the discretion under s 169 of the Evidence Act."

130 His Honour went on to say that although the basis upon which Hall J found that ss167 and 168 of the Evidence Act were engaged did not conform to the Court's reasoning, it should nevertheless be concluded that the Commissioner's request to Trimcoll conformed with the provisions, and once that conclusion was accepted, there was no basis for saying the request was otherwise than a reasonable one, subject to the pleading point. It was held that as the pleading issue had not been resolved at the time the request was made, and still was not resolved at the time of the appeal, it could not be said that the refusal to comply was "without reasonable cause", so as to engage s169(1).

131 We will need to return to an aspect of the Trimcoll cases, but to deal with the present ground of appeal, we will confine our remarks to the issue of where the onus lies in relation to an application under s169. Looking at the legislative scheme, and having regard to what was said in the Trimcoll cases, there can be no doubt that an applicant under s169 bears the onus of showing that the request under s167 was a reasonable one. However, whilst the onus would be also on an applicant to ultimately persuade a court that an order should be made under s169, once the reasonableness of the request had been established, the onus would lie on the party of whom the request had been made, to demonstrate that there was reasonable cause for the failure or refusal to comply. The latter proposition seems to have been the view of Hall J in Trimcoll [2005] NSWSC 1324 at [104] where his Honour expressed the opinion that the defendant had "failed to establish that it had reasonable cause to refuse the plaintiff's requests ...". That view was not commented on by the Court of Appeal.

132 The following is relevant to the proposition concerning the onus in relation to reasonable cause. Section 169(4) prescribes three instances which amount to reasonable cause to fail to comply with a request, one of which is that the person to be called as a witness is not available. The unavailability of persons is dealt with in s3B of the Evidence Act. That provides that a person is taken not to be available to give evidence if (amongst other things):

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success."

133 It is unlikely that an applicant under s169 is intended to take "all reasonable steps", as referred to in s3B(f) and (g), in relation to the witness of the opposite party, in order to show that that party has no reasonable cause for failing or refusing to call the person.

134 It is also clear from the Trimcoll appeal case that the question of which party bears the onus in relation to the issue about which the evidence is to be adduced, is a relevant consideration in dealing with an application under s169: [2007] NSWCA 307 per Basten JA at [48] and [70]. Ordinarily, it might be thought that if the requesting party bears no onus in relation to the issue in respect of which the evidence is to be adduced, and the request made, then the request is more likely to be seen as a reasonable one.

135 In this case, the trial judge did not refer to any question of onus. The appellant's argument depends on drawing an inference, and in that respect, argues that the trial judge was "plainly working on the assumption that it was for the appellant to demonstrate the absence of reasonable cause". Counsel for the Crown, Mr Jacobs, submits that the "demand made to the Crown ... was an unrealistic and unreasonable one and did not cover the type of matter intended by Part 6 of the Evidence Act". Mr Jacobs argues that the clear aim of Div1 of Pt6 of the Evidence Act is to enable some unique matter in a record to be tested and to reinforce the prosecution's obligation to act reasonably and to call witnesses who have relevant evidence whether they assist the prosecution's case or not. One example given was a single anonymous handwritten criticism in an employee's file amidst a typed record in glowing terms. Mr Jacobs says that the appellant did not in any way attempt to assist with names or details, and the request was "used solely as a blanket demand, and an unreasonable such demand, to produce unnamed people that the appellant knows the prosecution could not be aware of".

136 As to the Crown's submission on the scope of the provisions of Div1 of Pt6, there is no basis upon which the suggested limitations can be read into them. The limitations are only those which are set by the wording of the provisions. A reasonable request may be made to do one of the things set out in s166, for the purpose of determining a question that in any way relates to one of the three things set out in s167. As is established by the Trimcoll cases, the use of the phrase "relates to" in s167 denotes a connection of a broad nature. Matters such as "the authenticity or the accuracy of the evidence" referred to in s169(5) are inconsistent with a narrow scope for a request under s167, and the operation of s167 is not confined to questions merely going to admissibility, but extends to matters of credibility or weight: [2007] NSWCA 307 at [65].

137 In relation to the suggestion that the accused knew the prosecution's difficulties and was using the process as a mere tactic, we point out that the statements of two SUS employees had been taken and served, although it is not clear when the latter step was taken. One of those persons was Ms Szeto who was, according to her statement, involved in the preparation of the spreadsheets,

138 After careful consideration of the trial judge's reasons, and being mindful of avoiding an unduly semantic approach, we are satisfied that for the reasons which follow, his Honour erred in his approach to the appellant's application. At par[19] of his reasons, the trial judge said that he found it difficult to envisage a situation in which he would be persuaded that the prosecution had reasonable cause for failing to call witnesses, if those persons were known to it. That suggests the correct approach to where the burden lay. However, his Honour has gone on to discuss the nature of the request, and the fact that a determination of whether a request is reasonable involves a consideration of the question to be determined, which in this case was not identified in the request nor by any supplementary notice.

139 It will be recalled that the trial judge said he considered it likely that the appellant knew or could establish the identity of most, if not all, of the persons concerned, and had not identified any of them. The failure to identify any one of the persons required to be called, and to detail the question to be determined referrable to the maker of any of the representations in question caused him to doubt that the request was reasonable for the purposes of s167. This led to the statement that on balance, his Honour was unable to conclude that the prosecution's failure to call unidentified witnesses was without reasonable cause.

140 At the risk of taking a semantic approach which we have tried to avoid, had the correct approach been adopted, the ultimate conclusion should have been expressed as a satisfaction that there was reasonable cause for the prosecution's failure. But overall, it is the discernible reasoning process and the matters which the trial judge took into account, together with the language used which, with respect, reveals an incorrect approach.

141 At the outset, it should be acknowledged that the provisions of Div1 of Pt6 may give rise to difficulties of application in criminal cases. As the Trimcoll appeal case shows, the reasonableness of a request has to be assessed in the context of where the burden of proof lies as to the ultimate issue, and who it is who proffers the evidence. Where there is incriminating evidence in the form of business records or other documents or things to which s167 applies, the provisions provide important procedural safeguards. At the same time as care needs to be exercised to ensure that the safeguards are available to an accused person, care must be taken to avoid the situation where an accused can stultify or frustrate a prosecution by use of the request procedure. However, it has to be borne in mind that a person under caution, or having been charged with an offence, has the privilege against self-incrimination and is under no obligation to assist in the investigation or prosecution.

142 Speaking generally, in a criminal case where business records relied on by the prosecution do not identify the makers of the relevant representations, a request under s167 which does not specify the persons to be called could not immediately be viewed as unreasonable. In any subsequent s169 application an accused may show the request to be reasonable by the nature of the representations and the documents which contain them. At that point it is difficult to see how evidence, or an inference properly drawn, that the accused had actual or available knowledge of identity, would make unreasonable an otherwise reasonable request.

143 As earlier discussed, assuming the request to be reasonable, the prosecution would need to show reasonable cause for failing to call the witnesses. If the asserted basis is that the prosecution does not know the identity of the makers, evidence to that effect, and evidence as to what steps had been taken to establish their identity might be expected. That may include evidence of efforts made to have the accused identify the makers, and whether the accused was under caution or had been charged would be relevant to such efforts. If reasonable cause is shown on that basis, a pre-condition to orders under s169 is not met. It might be expected that at least ordinarily, an inference that the accused had actual or available knowledge could not of itself establish reasonable cause.

144 The evidence might show that the prosecution has made reasonable but fruitless inquiries, and that there are no means of identifying the makers independently of the accused; or to put it another way, the accused exclusively has the relevant knowledge or the ability to readily acquire it. We observe that an accused with exclusive actual or available knowledge has a choice of informing the prosecution of the identity of the makers, so that they can be called in the trial for cross-examination, or of calling the persons himself, or do nothing about the witnesses and argue the weight which should be attributed to the representations. Alternatively, it is conceivable that the prosecution cannot show reasonable cause, but that the court concludes that the accused has actual or available knowledge. That may impact on the ultimate exercise of the discretion. Further, whether or not the knowledge or means of acquiring it is exclusively held, it might be possible to infer that the request and application are made knowing or anticipating that the prosecution cannot identify the makers after reasonable inquiries. That is almost inevitably going to make the request unreasonable.

145 In any of the postulated scenarios the weight to be attributed to the state of the accused's knowledge may need to be measured having regard to one aspect of the competing considerations which we earlier mentioned. That is, the fact that the proceedings are criminal ones and that the accused is under no obligation to assist in an investigation, at least to the extent of self-incrimination. Much would depend on the circumstances of the case; in particular the nature of the representations, and of the documents containing them, which are the subject of the request. Each representation or document, or set of documents, may need to be examined in light of all of the relevant factors. Different considerations may apply to different representations or documents.

146 As to this case, the appellant's initial request was a broad one, but ultimately confined before the trial judge to what was said to be 22 documents. In some cases the documents contained typed representations, as well as handwritten ones, and although it might have assisted if some attempt had been made at defining what representations were referred to, there was no suggestion that the request was unreasonable on that basis. As the evidence and the arguments unfolded on the voir dire, all of that became reasonably clear. The trial judge accepted that in terms of the number of documents, the appellant had not sought to rely on the request in an oppressive way.

147 As to the failure to specify in the request the question to be determined and for which purpose the request was made, we do not regard that sufficient in itself to make the request unreasonable. No such requirement is imposed by the provisions. It is obvious that questions relating to a previous representation, or the authenticity, identity or admissibility of the document or thing would include the sort of questions set out in s169(5)(c), (d) and (e) in particular. In the Trimcoll case, the request simply stated that the request to call the witnesses was for the purpose of determining questions "that relate to either the previous representations ... or, the authenticity, identity or admissibility of particular documents ...". The questions to be determined were explained at the hearing of the application. That occurred in this case by way of counsel's arguments as to the admissibility of the representations under s69, and by reference to s169(5). See also Banksia Mortgages Ltd v Croker [2010] NSWSC 883 at [71].

148 As we have said, an assessment of whether the appellant knew or could reasonably establish the makers of the representations may have been a relevant factor. With few exceptions, the documents were SUS documents. But he was under no obligation to conduct inquiries of his own or assist in the investigation. He bore no onus of proof as to the ultimate issue. It will be recalled that in the interview the appellant was asked to find out which employee had prepared the loose-leaf folder pages "bearing in mind the caution". The trial judge did not seem to have any evidence as to whether the police followed up on this request, given the appellant's apparent agreement to do what he was asked.

149 The trial judge had some material which suggested at least two SUS employees had been spoken to by the authorities, but there was no direct evidence of any steps taken to establish the identity of the makers of the representations once the documents had been seized, analysed and their significance appreciated. Questions were asked of the appellant but further, independent inquiries might have been expected. The purposes of the loose-leaf folder and diary pages are not obviously self-explanatory. The accuracy of the entries was plainly important. The basic purpose of the spreadsheets might be clear, but the system by which the entries are made is not. Again, the accuracy of the entries was obviously something of concern, and likely to be a major issue.

150 From a broad perspective, the trial judge seems to have taken the view that the prosecution's stated reason for non-compliance was reasonable on its face, and that the position taken by the appellant in various respects did not persuade him otherwise. In doing so, we are satisfied an onus was put on the appellant which should not have been. The appellant did not have an onus to prove lack of reasonable cause on the part of the prosecution. The trial judge inferred that there was a likelihood the appellant knew or could establish the identity of most, if not all, of the relevant persons, and noted that the appellant had not specified the persons in the notice as he could have. These things were said to cast doubt on the reasonableness of the request, but ultimately formed the basis for establishing the reasonableness of the Crown's failure. This was when the Crown had led no evidence of any inquiries other than the questions asked of the appellant in the interview, and when the material showed that in fact it had identified one person who at least claimed to have made the representations in one set of documents, but had offered no clear explanation as to why she was not to be called as the maker.

151 We are also satisfied that the ground as argued sufficiently raises additional irregularities in the trial judge's approach which we have identified. In particular, the request was judged globally and without reference to individual representations or sets of documents. The reality is that at least one document did not originate from SUS, and one in respect of which the appellant could not be assumed to have known the maker, appears to have been overlooked.

152 Having held the ground to have been made out, the question is whether this Court can resolve the appellant's interlocutory application. If there is no question of credibility, and the real question is what inferences can be drawn from established facts not substantially in dispute, there would be no difficulty: Madubuko v R [2011] NSWCCA 135; (2011) 210 A Crim R 249 at 255 [23]. The difficulties with the finding of the trial judge as to the prosecution's inability to identify the witnesses, and the paucity of evidence which we have previously identified, prevent this Court from undertaking the exercise.

153 The issues in the appellant's application under s169 which could be determined in this Court go far beyond inferences drawn from primary facts, the subject of little dispute. As this Court is not able to resolve the application, the ground should succeed. This is not a matter to which the proviso in s402(2) of the Criminal Code can be applied. Conceptually, the task of assessing whether no actual miscarriage of justice has occurred cannot be undertaken. Because ground 1(e) is an alternative to 1(d), there is no need to consider it.

154 This ground alleges that the trial judge erred in law, fact or both in admitting into evidence a previous representation comprising "a faint carbon handwritten '738 KG' on exhibits P81, P420 and P431". The particulars of the errors alleged are that the trial judge admitted the evidence (a) without determining the appellant's twice-made objection to its admission on the grounds of non-compliance with the Evidence Act, s69, (b) without determining the appellant's twice-made objection to its admission on the grounds afforded by the Evidence Act, s169, (c) by purporting to admit it on a basis not advanced by the Crown, and (d) purporting to admit it on a basis not known to law.

155 The exhibits referred to and the notation of "738 KG" on them require explanation. P81 is a page of a Commercial Rock Lobster Quota Docket. The dockets were bound in books provided by the Department. The evidence was that the book contained three copies of each numbered docket and the pages were carbonised. The first copy was pink and after completion by the fishermen had to be sent to the Department within 48 hours of the unloading of the fish. The next copy was yellow and once both Parts A and B had been completed, was to be kept with the fish. The final copy was white and stayed in the book, with the fishing licence holder having an obligation to keep them for a number of years.

156 The pink copy has a middle section, "Balance and Quota Details", for the provision of quota allocation details and the balance of the quota after deduction of the weight of fish the subject of the particular docket. That section is reproduced in the white copy, but there is a black band through that section on the yellow copy. Accordingly, once the details are completed on the pink copy, they do not appear on the yellow copy, but do appear on the white one.

157 P81 is a yellow copy of docket 29604 for the Southern Leader with the date of unloading of 3 August 2004. This yellow copy was found at the SUS premises by police. The only reference on that copy to a quantity of lobster is in Part B which shows that 49 plastic bins were taken by the processor. Part B is signed by the appellant. Just under the blacked out section for balance and quota details, there is a handwritten "738 KG" in large numbers and letters, slightly diagonal to the lines of the page

158 On P81 the note of "738 KG" is not the original writing but is a carbon imprint. P420 is a photocopy of P81 which was sent by the appellant to a Departmental investigator at the latter's request. P431 is a photocopy of the white copy which was found in the Docket book at the Stephens' home. That also has a carbon copy of the note "738 KG" in the same place as P81. Notwithstanding that the pink copy should have been with the Department, for some reason it was not, and it was not tendered. There is thus no way of knowing whether the notation was written directly onto the pink first page, or whether it was written onto a separate unidentified page resting on top of the triplicate pages in the book. Common sense might suggest that it is more likely to have been the latter.

159 P431 shows a weight for the catch of 1,361kg which accords with the Fish Receipt Docket, the Rock Lobster Catch Record, a Tax Invoice/Statement showing payment for 1,361.1kg @ $36 per kilogram, and a Recipient Created Tax Invoice. The Crown's allegation in particular 8 was that in fact 2,099 kilograms had been caught and received. That figure less 1,361 is 738. The total figure of 2,099 (or more correctly 2,099.15) is shown from an addition of weight categories on an SUS spreadsheet stock record for 3 August 2004.

160 It is true, as the appellant says, that the objection was made in the course of the voir dire. Counsel for the appellant told the trial judge that there was an objection to the document "in any of its forms, in so far as it contains handwriting which appears to read '738 kg'". It is also true that his Honour did not deal with the objection in the rulings made on 19 July 2011, the reasons for which were published on 4 October 2011. On 20 September senior counsel for the appellant in the trial reminded his Honour of the objections and some further arguments were put by both parties. His Honour immediately ruled as follows:

"As I've already ruled the quota documents themselves are relevant ... as business records. For present purposes I am prepared to assume that the figure of 738 kilograms on the greater document which is in question is not itself a part of the business record. Its relevance is that it appears on a relevant document which itself is linked to an alleged conspiracy to understate a catch by precisely the same amount, 738 kilograms. The presence of this figure on the admissible document is a basis from which it may be inferred that those involved in the preparation of that relevant quota document which includes the accused had in mind that which the prosecution asserts. That is, understating the catch by that precise amount. It is this that makes the portion of the document relevant and I am not satisfied that its probative value is outweighed by its prejudicial value. I will allow that record on the document to go into the evidence with the document."

161 It is convenient to deal first with the basis on which the notation on the document was admitted. It seems plain enough that the trial judge admitted the notation as a previous representation to which the hearsay rule did not apply. The relevance was not in the truth of the asserted fact, but in the fact that the figure of 738kg was written and is the amount by which the Crown alleged the particular catch was understated. Further, this amount is capable of being established by comparing the partnership records with SUS documents, principally a loose-leaf folder page, and the spreadsheets.

162 There is no substance to ground 2(c) which asserts that the basis of admissibility adopted by the trial judge was not advanced by the Crown. In the discussion and argument leading up to his Honour's ruling on 20 September 2011, counsel for the Crown clearly articulated the relevance of the appearance of the figure on P81 and its variants. It was put as having strong probative value because it indicated that somebody associated with the fishing venture and the particular catch, has put a weight, the significance of which becomes clear when other documents are looked at. It was put that the writing demonstrates planning "presumably at the time ... close to the fish being landed, when that specific amount was agreed as part of a conspiracy to be deducted off the final total ...".

163 The appellant did not explain the suggestion made in ground 2(d) that the basis upon which the trial judge admitted the evidence of the annotation on the documents was not known to law. The fact of the notation appearing where it did and in the circumstances in which it seems to have been written on at a time when all of the pages of the relevant docket were together, is a relevant fact in itself within the meaning of the Evidence Act, s55. Given that an understatement of the catch by the very figure of 738kg is capable of being inferred from SUS documents, the notation is directly relevant to the existence of a conspiracy as alleged between the appellant and Mr Stephens and others.

164 Turning to the remaining aspects of the ground, the fact that the notation on the document was admitted as a representation but not by way of an exception to the hearsay rule, obviated the need for the trial judge to consider the objection to its admissibility under s69. There is no need for this Court to consider the appellant's assertion of error in that respect. However, the trial judge did not deal with the application under s169. This may have been an oversight or a misunderstanding.

165 It is established that ss167 and 169 apply to a "previous representation", even where it is relied on for a non-hearsay purpose. In Lewis v Nortex Pty Ltd (In liq) [2002] NSWSC 237 Hamilton J considered the intention of the provisions of Division 1 as discussed in the Australian Law Reform Commission Reports which led to the uniform evidence law. At [6] his Honour said:

"During the formulation of the Act in its final form, the provision was expanded, so that it now applies to previous representations generally, rather than only to documents tendered as business records. I ought say, looking at the definitions of 'previous representation' and 'representation' in the Dictionary to the EA and comparing those definitions with the provisions of s 59(1) of the EA, it seems to me that 'previous representation' as used in Division 1 of Part 4.6 may well be wider than the 'representations' comprehended in s 59. There the ban is on previous representations where their use is to prove the truth of what is represented. The purpose of the tender in this case may well be to prove the making of a representation in the terms alleged, rather than the proof of the truth of the content of the representation; nonetheless, it seems to me that 'previous representation' is used in a wide sense in Division 1 and is not limited to previous representations tendered as proof of their contents."

166 This is the same view as was taken in Trimcoll: see [2005] NSWSC 1324 at [104]; [2007] NSWCA 307 at [33], [61]. In this case, the notation was not admitted as a representation to which an exception to the hearsay rule applied, but it may well still be a representation as defined in the dictionary provision, s3[6]. Alternatively, it may be regarded as something to which s167(c) applied: Trimcoll appeal case at [33]. Accordingly, the trial judge was obliged to consider the appellant's application in respect of this evidence, and did not. That is an error. The question is what consequences follow?

167 As earlier noted, as an interlocutory matter there would be nothing precluding this Court from determining the application for itself, assuming the real question is simply what inferences should be drawn from primary facts which were not substantially in dispute: Madubuko v R (above) at 255 [23]. The lack of established primary facts as to this representation is a major hurdle to this Court determining the question for itself.

168 P81 was not an SUS document but a partnership document. The trial judge's finding that the prosecution was unable to identify the person or the persons who made the representations in the documents did not extend to what became P81. As we have already discussed, there is nothing in the material before this Court to show what the evidence was, or what was said about an inability to identify the maker of this notation, nor indeed for that matter, about any of the partnership documents.

169 Phillip Stephens was sentenced in this Court on 15 February 2001 for his role in these matters. The handwriting of the notation on P81 looks very much like the handwriting in the other partnership documents such as Quota Dockets and Catch Record Logbook pages. There is no immediately apparent reason why he could not have been called at the trial were he to have been, as is likely, the maker of the notation. Arguably, the jury had evidence before it which it should not have had.

170 The appellant suggests that P81 was the most significant document in the Crown case against him. We do not consider that it had that level of significance, but it is only one of two partnership documents which have numbers on them which would be incriminating in terms of an arrangement between Mr Stephens and the appellant.[7] P44 is the other. The SUS documents by themselves might show the making of false statements by the appellant as to how much lobster he received, but the crime charged was conspiracy. Accordingly, it cannot be said that the exhibit was of no consequence. It was given some emphasis in the Crown case. The material does not enable this Court to resolve the appellant's application under s169, and it follows that this aspect of the ground of appeal must succeed.

Appeal against conviction - non-evidentiary grounds

171 It will be recalled that the indictment filed by the Crown contained two counts stated to be in the alternative. The jury was unable to reach a verdict on the first count but found the appellant guilty of the alternative count. The two counts were in the following terms:

CONSPIRACY - Contrary to Section 297(1)(d) of the Criminal Code.

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 and/or 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, 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 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 Fisher;

(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.

1. He 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.
2. He 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.
3. He 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.
4. He 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.
5. He 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.
6. He 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.
7. He 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.
8. He 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.
9. He 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.
10. He 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.
11. He 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.
12. He 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.

CONSPIRACY - Contrary to Section 297(1)(c) of the Criminal Code.

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 on the occasions specified in the Further Particulars contained in the primary Count to which this is an alternative."

172 The appellant, by ground 3, complains about the direction given by the trial judge to the jury about how they might deal with the alternative count. The ground of appeal is in the following terms:

"The learned trial judge erred in law by directing the jury that it could convict the appellant of the alternative count in the indictment if they were satisfied that the conspiracy was to commit one or more of the 12 particularised crimes contrary to s265(a) of the Living Marine Resource Management Act, when the indictment did not so particularise the conspiracy."

173 The direction complained of appears at T359 (the transcript of the trial), and is as follows:

"Now I understand why Mr Tree was misled in making the submission that he did to you that you must be satisfied that on each occasion specified in the further particulars they had that agreement because it's what's there, but it's precisely the same error as was made in relation to count 1. It's the intent - there's not - this isn't a charge of twelve crimes of conspiracy, it's a charge of one crime of conspiracy, an agreement. Those particulars are instances from which you are invited to infer there was that agreement. Do you understand? It didn't have to be an agreement to do it on the occasions specified in the further particulars, that's not what they had to agree, they simply had to have one agreement, one conspiracy. That's the charge, that's the alternative charge that is before you."

174 This is however not all that the trial judge said about the matter. Preceding the above comments, his Honour said:

"As to the alternative charge of conspiracy if the jury is not satisfied beyond reasonable doubt that the accused is guilty of conspiracy as charged in count 1 it must consider whether he is guilty of the alternative charge of conspiracy if all of the conspiracy that is the subject of the alternative charge is conspiracy to commit a crime or crimes. And as I've explained in 3.3, during the relevant period the Living Marine Resources Management Act 26.5(A) provided:

A person is guilty of an indictable offence punishable under the Criminal Code if that person in keeping any records or accounts or other information under this Act makes a statement knowing it to be false or misleading. Records required to be kept under the Act include rock lobster quota documents and fish receipt documents.

Now to convict the accused of conspiracy on the alternative charge you must be satisfied beyond reasonable doubt that the accused reached an agreement with one or more others as detailed in the particulars to the charge down to Judith Stephens.

Now let's go to that. What is the agreement? Let me pick it up in the middle of the paragraph after the reference to the Act:

- that in keeping records under the said Act, namely commercial rock lobster quota documents and/or fish receipt documents by understating thereon the amount of rock lobster taken by the said Philip Alan Stephens and Judith Stephens.

Now I was careful when I drew the memorandum to say that is the agreement. It finishes there."

175 His Honour also provided the jury with a written memorandum. At pars2 and 3, of that memorandum, he said:

2.1 The form of conspiracy that is the subject of Count 1 is a conspiracy to defraud by agreeing by dishonest means to deflect a public officer from the performance of his or her public duties.

2.2 To convict the accused of conspiracy on Count 1 you must be satisfied beyond reasonable doubt:

• That the accused reached an agreement with one or more others as detailed in the particulars to Count 1 prior to the heading 'Further Particulars'. In brief summary what is alleged is an agreement to defraud the Minister and/or Secretary by falsely under-recording in documents provided pursuant to the legislation, the amount of rock lobster caught by Phillip Stephens and purchased by Southern United and by falsifying the records of that company in relation thereto and to thereby deflect the Minister and/or Secretary from the performance of some or all of their public duties under the Act or Rules.
• That the accused and one or more of the others agreed to carry out the agreement and intended to do so.

2.3 The public duties of the Minister and the Secretary include those detailed in pars(a) to (e) in the particulars to Count 1.

3.1 If the jury is not satisfied beyond reasonable doubt that the accused is guilty of conspiracy as charged in Count 1, it must consider whether he is guilty of the alternative charge of conspiracy.

3.2 The form of conspiracy that is the subject of the alternative charge is a conspiracy to commit a crime or crimes.

3.3 During the relevant period the Living Marine Resources Management Act, s265(a), provided that: 'A person is guilty of an indictable offence punishable under the Criminal Code if that person, in keeping any records, accounts or other information under this Act ... makes a statement knowing it to be false or misleading'. Records required to be kept under the Act included Rock Lobster Quota Dockets and Fish Receipt Dockets.

3.4 To convict the accused of conspiracy on the alternative charge you must be satisfied beyond reasonable doubt:

• That the accused reached an agreement with one or more others as detailed in the particulars to the charge down to 'Judith Stephens' in the second last line.
• That the accused and on [sic] or more of the others agreed to carry out the agreement and intended to do so."

176 The direction complained about was given to the jury after counsel had a draft memorandum to the jury in the form set out above, and after counsel had made their closing addresses. Before the direction was given, the trial judge spoke to counsel in the absence of the jury because of what counsel for the appellant had told the jury about what they needed to be satisfied of. The issue now raised on the appeal was the subject of that discussion. It centres on just what was asserted by the alternative count on the indictment to be the conspiracy entered into by the appellant.

177 At the hearing of this appeal, senior counsel for the appellant submitted that there was a distinct difference between the way in which the first count on the indictment and the alternative count had been drafted, and that it was a deliberate and intended difference. The first count, he submitted, contained an assertion of a conspiracy to defraud under s265(d) of the Code. The 12 particulars provided under the heading "Further Particulars" were of the overt acts from which that conspiracy could be inferred. As to the alternative count, counsel submitted that the 12 particulars were not said to be overt acts from which the conspiracy could be inferred, but rather the indictment had been drawn so that the crime of conspiracy was one to commit 12 particularised crimes. The drafter, he submitted, clearly intended to encompass and rely upon each and every one of the 12 crimes particularised in the primary count. As a consequence, counsel argued that the crime set out in the alternative count was that of a conspiracy to commit 12 specified crimes under the LMRM Act. He submitted that, in directing the jury as he did, the trial judge, in effect, redrew the alternative count on the indictment to be something it was not, that is an allegation of one count of conspiracy to commit one or more crimes.

178 The issue raised by this ground of appeal requires a consideration of the elements of the crime of conspiracy and a consideration of the wording of both counts on the indictment. As earlier noted, the Criminal Code Act, s297(1)(c), provides that any person who conspires with another to commit any crime is guilty of a crime. A fundamental aspect of this crime of conspiracy is that there is an agreement between the person charged and one or more others to commit "any crime". Unless a jury is satisfied as to the existence of such an agreement, it cannot convict a person of the crime of conspiracy. Further, a jury not only needs to be satisfied as to the existence of an agreement, but also that the parties to that agreement intended to carry out what was agreed to be done. It is not necessary for a jury to be satisfied that what was agreed to be done was actually done.

179 As to the wording of the first and the alternative counts on the indictment, there is no doubt they are worded in a different way. The first four lines of each count are almost identical. The differences start at the end of the fourth line where it becomes necessary for the type of conspiracy to be identified, that is a conspiracy to defraud in the first count and a conspiracy to commit crimes in the alternative count. In the first count, the drafter of the indictment goes on to identify in general terms the activity said to amount to activity which might cause the Minister to be defrauded, and also sets out particulars of the duties of the Minister from which it is said he might be deflected by the appellant's activities. There then appears the heading "Further Particulars". Under that heading the drafter of the indictment lists the 12 specific occasions and activities said to have been carried out by the appellant. There is nothing stated in the first count which says that those particulars are present for the purpose of asking the jury to infer from them that the appellant entered into a conspiracy to defraud, although the argument for the Crown was that, if they were satisfied any of those activities occurred, they could infer the existence of the conspiracy to defraud.

180 As to the alternative count, the drafter identified the conspiracy as being one to commit crimes contrary to s265(a) of the LMRM Act. He or she then went on to say:

"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 on the occasions specified in the Further Particulars contained in the primary Count to which this is an alternative." [Our underlining]

181 When the trial judge gave his oral and written directions to the jury he emphasized that what constituted the crime of conspiracy was the existence of an agreement. He identified the agreement as being that identified in those words which we have underlined in the quotation in the last paragraph. He told the jury that the "Further Particulars" were instances of events from which the jury was invited to infer the existence of the agreement. He emphasized that the indictment alleged one conspiracy and not 12. It is the appellant's position that the agreement asserted by the alternative count is one to commit 12 separate crimes as identified under the primary count.

182 With respect, it seems to us that counsel for the appellant and his Honour may have been to some extent, at cross purposes. Counsel for the appellant does not seem to have been suggesting that there were 12 conspiracies as his Honour thought. What he said was that the alternative count as framed alleged one conspiracy, but that that conspiracy was to commit 12 crimes, each of which was particularised under the heading "Further Particulars". There was no dispute that there was one conspiracy. The dispute lay in what the nature of the agreement was which constituted the conspiracy.

183 His Honour approached the alternative count in the same manner as he did the first count, notwithstanding the difference in wording. He told the jury that the particulars were instances of events which, if they found they had occurred, could be used to infer the existence of the agreement to defraud the Minister (first count) or to commit crimes (the alternative count).

184 While the appellant's argument may seem logical on a literal reading of the words of the alternative count, it produces an illogical result. By its very nature an allegation of conspiracy involves there firstly being an agreement. The Crown's case was that at some unidentified date prior to any acts occurring, an agreement was entered into to commit crimes under the LMRM Act, s265(a). The Crown said that crimes under s265(a) were in fact committed on the dates set out in the particulars. However the Crown did not need to prove those crimes were actually committed. All it ever needed to do was prove there was an agreement to commit such crimes. It would be a tortuous interpretation of the alternative count, notwithstanding its wording, to suggest that it was an allegation that the parties agreed, before the event, to commit 12 specific crimes on particular dates over a four year period.

185 The dealings between the parties to the asserted conspiracy involved Mr Stephens and others going out fishing and, when they brought their catch to shore, selling it to the appellant. Fishermen do not go fishing on designated days in each year every year. It would have been impossible for the parties to have agreed at some stage in 2001 that on particular dates over the next four years they were going to commit a crime contrary to s265(a). The only logical interpretation of the alternative count is that adopted by the trial judge. Counsel's submissions as to the intention of the draftsman it should be noted, were unsupported by anything other than counsel's statement.

186 There was no suggestion by Mr Tree that the appellant did not know the case put to the jury or that he was in some way prejudiced in his defence of the alternative count by his Honour's directions. The Crown's case was based on documents. In the voir dire before the trial, Counsel for the Crown identified the nature of the case the Crown was presenting. He said there was no evidence of a confession or admissions. The Crown's case was that the conspiracy could be inferred from the documents. The documents were those identified in the particulars. We are not satisfied that the trial judge made any error when he directed the jury as he did on this issue.

188 There was, as is obvious, an extensive argument prior to trial about whether documents sought to be tendered by the Crown were or were not business records. Grounds 4 and 4A of the notice of appeal are related to that argument, but are directed to the trial judge's directions about the nature and use of certain exhibits. The grounds provide:

"4 That the learned trial Judge erred in law, fact or both by:-

(a) instructing the jury that the carbon printed handwritten '571' on exhibit P43C was not a business record;

(b) giving the above instruction a prominence in his charge to the jury which it did not warrant;

(c) to the extent that the learned trial Judge purported or attempted to later withdraw the above instruction during the course of his charge to the jury, failing to afford the withdrawal appropriate prominence or emphasis;

(d) instructing the jury that the faint carbon handwritten '738KG' on exhibits P81, P420 and P431 was not a business record.

(a) incorrectly instructing the jury that the carbon printed handwritten '571' on exhibit P43C was not a business record and had not been tendered into evidence as being a business record; and

(b) incorrectly instructing the jury that the carbon printed handwritten '571 is relevant because of the coincidence that it happens to match the very figure that the prosecution says was decided for the purposes of the under declaration in that case';

(c) incorrectly linking the carbon printed handwritten '571' on exhibit P43C with the carbon printed handwritten '738kg' on exhibit P81;

(d) giving the above instructions prominence in his charge to the jury, being the first matters of fact dealt with by the learned trial Judge after charging the jury in relation to the law;

the learned trial Judge brought about a miscarriage of justice in that:-

(e) it was not, and never had been the Crown case, that the carbon printed handwritten '571' on exhibit P43C was not a business record;

(f) it was not, and never had been the Crown case, that the under statement relevant to particular 4 was 571kg;

(g) it was not, and never had been the Crown case that the carbon printed handwritten '571' on exhibit P43C had some link with, or was of the same character as, the carbon printed handwritten '738kg' on exhibit P81;

(h) the matters in sub-paragraphs (a), (b) and (c) above were raised for the first time in the trial by the learned trial Judge during his charge to the jury;

(i) in the premises, the accused was denied any opportunity to address the jury in relation to the matters in sub-paragraphs (a), (b) and (c) hereof; ..."

189 To understand the nature of these grounds it is necessary to look at that part of the Crown's case to which they related, which was that raised by particular 4. It is also necessary for the sake of convenience, to repeat much of what has previously been set out concerning the documents and notations on them referred to in the grounds of appeal presently under consideration. It was the Crown's case that an agent of SUS signed Commercial Rock Lobster Quota Docket No 19893 dated 21 June 2003 which recorded 571kg of rock lobster being received from Mr Stephens' boat, and that the appellant personally signed Fish Receipt Docket No 42305 recording 571kg, when the actual weight received and paid for was approximately 678kg. P41 is docket number 19893 and P42 is docket 42305. P43C is a page of a Rock Lobster Catch Record signed by Mr Stephens. P48 is a Tax Invoice/Statement showing that payment was made for 571kg.

190 The documents relied on by the Crown to specifically support its allegation of understating in respect of this particular were P45 and P46A - 46C. P45 is a piece of paper with handwritten notes on it. For the date 21 June, there appeared the note "Phil" with a number of figures beside it. The figures were said to add up to the amount of fish actually caught. P46A - 46C are spreadsheet pages. It was the Crown's case that the entries relating to Phil Stevens also supported the actual weight asserted to have been delivered.

191 As to P43C, there is a handwritten number 571 appearing at an angle to the left of the document. It was described by senior counsel for the appellant as a carbon imprint. However an examination of the original exhibit suggests it is pencil, although we do not think anything particularly turns on the difference. There was no evidence as to who wrote the figure. It however corresponds with the amount ultimately declared as having been received by the appellant and the business from Mr Stephens' June fishing trip, which the Crown says was an understatement of what was actually delivered by Mr Stephens and paid for.

192 P81 related to particular 8, and has been earlier discussed in relation to ground 2 of the appeal. It was the Crown's case that the appellant signed the Processor/Fish handler details section of Commercial Rock Lobster Quota Docket No 29604 dated 3 August 2004, which recorded 1,361.2kg of rock lobster being received from Mr Stephens and also, on the next day, a Fish Receipt Docket No 42324 recording the same amount, when the actual weight received and paid for was approximately 2,099kg. P81 is one of the copies of docket number 29604 and P82 is docket 42324. P88 is the tax invoice/statement showing that payment was made for 1,361.1kg. On P81 in handwriting at an angle across it are the numbers and letters "738 KG". Other documents appear in the same part of the appeal book and were relied upon by the Crown to support the allegation of understatement.

193 It will be recalled that P81 came from a docket book with numbered dockets. Each docket consisted of three carbonised pages. The other two copies of P81 had the same handwritten notation on them although the documents were found in different places. P81 was found at the office of SUS. There was no evidence as to who wrote the numbers. It was the Crown's case that that figure represented the amount of fish understated in respect of particular 8.

194 Whereas, having regard to particular 4, the handwritten amount was the same as the weight of fish declared; in the case arising in respect of particular 8, the handwritten amount was said to equal, not the amount declared, but the amount understated. Therefore the handwritten amounts, whoever had written them, held a different significance.

195 P43C was tendered by the Crown at trial without objection. At the time of its tender through the manager of the Fisheries Compliance and Licensing Branch of the Department, no basis for its tender was identified and it was tendered without objection. There had previously been an argument relating to the admissibility of many of the documents sought to be tendered by the Crown at trial. All the documents the subject of that dispute had been sought to be admitted by the Crown as business records. The documents which became exhibit P43C were not the subject of that dispute.

196 As to P81, it will be recalled that the objection to the admissibility of P81 and its variants was not dealt with in the trial judge's rulings on 19 July 2011, but was the subject of a ruling on 20 September 2011 after the omission had been raised with the trial judge: see par[159] above. The notation was not admitted as a previous representation to which the hearsay rule did not apply, but on the basis that the fact of the notation appearing where it did, and in the circumstances in which it seems to have been written, was a relevant fact in itself.

197 Dealing with the arguments on the appeal, senior counsel for the appellant submitted that what the trial judge said to the jury at T362 was critical to grounds 4 and 4A. The trial judge, having given directions about the nature of the charge of conspiracy and circumstantial evidence, went on to a new matter. At T362 he said:

"Now I go to another matter. Save for two instances the documentary evidence is admissible and has been put before you on the basis that they are business records. The two instances to which I refer as evidence not being put to you on that basis are the evidence in document - volume 1, 43C, if you'd just have a look at that. You'll see on the left hand side of that page the numerals 571. Now there's no evidence that they are part of a business record, how those numerals got there we don't know, and the same applies in relation to document 81 that you've had mentioned before you a number of times. On document 81 you'll recall there is the seven hundred and thirty eight kilograms that appears. Now as I actually mentioned to you this morning, the copies of document 81 appear in the evidence that has been provided for you. You've got the yellow copy, which is the copy that was retrieved from Southern United, and you've got the grey copy, which was retained in the quota book of Mr Stephens. So why is that evidence before you? Well in relation to document 81, on the two versions of it, both of which we have that figure on it, it is relevant because it's on what is itself a relevant document which relates to an asserted conspiracy to understate the catch and that amount is a figure that is relevant to that understatement. So it's there because you may consider it is evidence that at a time before the two copies of P81, the quota document, were - I was going to say prepared but that's not correct - but at a time one might think contemporaneous to the preparation of that document that figure was in the mind of someone, and why I say at that time is because you will be aware that the copy that went to Southern United has it on. Now as I understand from the evidence that copy goes with the person who picks up the delivery, so as I understand the evidence that means that figure had been put on it at that time and I say that, as I say, because it's on both. If it was simply on Mr Stephens' copy you wouldn't have a clue when it got there. But it's a matter for you, but that suggests to me that it was on before the Southern Unite copy of the quota document went to Southern United.

In the case of 43C, that's the earlier one I referred you to, again that five hundred and seventy one is relevant because of the coincidence that it happens to match the very figure that the prosecution says was decided on for the purposes of the under declaration in that case, which is set out at 44. You'll see at 44 you've got the same figure, five hundred and seventy one, and that figure is at the heart of the prosecution's assertions in relation to that particular instance. But it really doesn't take you very far, I'm not pretending it takes you very far, I'm just explaining that it's there. Why I suggest to you it doesn't take you very far is you have no idea when that five seventy one was put on that document.

Now the prosecution in essence put to you that all of the documents are authentic but that those that understate the catch when compared to later documents are dishonest, they're untrue, they're not accurate. But that, as I say, brings you back to the need in each instance to assess the authenticity, the reliability, the meaning of any document, who the maker was, where you can ascertain it if you can, who was involved in making it, what was the system that underpinned its preparation if there was one, these are all issues that you need to have in mind when you're considering any particular document. As to this, that is your assessment of these business records, I must warn you that business records may be unreliable. There is no guarantee that any business record is reliable. In this case your task is to assess the reliability of the records and that task is made more difficult because in many cases you do not know who is the author of the document or entry in the document, you do not have evidence from the author of the document, you do not have evidence of the system behind the preparation of the document or its reliability save in the most general terms in a limited way from Jian Ling in relation to the tally sheets. She did not herself prepare any of the tally sheets that were put before you but gave you evidence about how they came to be prepared, where they were placed and where they went afterwards to the office. I warn you that you must be cautious in assessing the authenticity, reliability and content of each document and in determining whether to accept the evidence you derive from it and the weight you give it and that's a general warning which applies of course to each of the documents, members of the jury."

198 Mr Tree submitted that the instructions by the trial judge appearing at T362 contained errors. He identified the errors as the following:

• the handwritten notation containing the numbers "571" was not admitted otherwise than as a business record;
• it was wrong to suggest that the numbers "571" were evidence of an understatement of a catch.

199 Mr Tree submitted that the handwritten entry on P43C was entirely consistent with an accurate declaration of the weight of fish and was, as such, exculpatory. He submitted that there had never been a suggestion prior to his Honour's comments that:

• the notation was not a business record;
• the Crown's position was it was not;
• there was any link between the handwritten note on P43C and that on P81.

200 The different roles of the handwritten notations on P43C and P81 can best be shown by the appellant's approach to the tendering of them. On P43C, they were seen as exculpatory because they simply appeared to record the amount actually being declared consistent with the documents signed by the appellant and the agent of the business. There was nothing incriminating about them. As to P81, it was potentially incriminating because it appeared to record the amount of the understatement asserted by the Crown. The appellant therefore made no objection to the first document but did object to the second.

201 In his remarks at T362, the trial judge clearly isolated these two particular documents for comment, namely P43C and P81, because they had handwritten notations on them. While he does not clearly say so, he appears to have accepted that the two documents, absent the handwritten parts identified, were business records, but that the handwritten notations were not, essentially because there was no evidence about who had written them or that they were part of any system usually applied in respect of documents of this type. That approach is consistent with the ruling his Honour gave in respect of document P81 which ruling appears in par[159] above.

202 In ground 4(a) of the notice of appeal, the appellant asserts that the trial judge instructed the jury that the handwritten notation on P43C was not a business record and that he made an error in so doing. There is no doubt that his Honour did so instruct the jury. Was that an error? The Crown tendered documents generally as business records. It did not identify P43C as being in any different category, and counsel for the appellant did not address the matter in the sense of obtaining confirmation that business record status was to be accorded to this particular document as a whole. It can only be inferred that both counsel for the Crown and the appellant made an assumption that this was the basis upon which P43C was tendered, but neglected to say anything to the trial judge. It is clear from his Honour's direction to the jury that he did treat P43C and P81 in the same manner; that is, in accordance with his ruling in respect of P81. It seems therefore that in telling the jury P43C was not a business record, the trial judge did make an error. Given the manner in which counsel approached the issue of the status of the document, his Honour's error is perhaps understandable.

203 As part of the alternative ground 4A, it is alleged at (a) that not only did his Honour instruct the jury that the handwritten notation on P43C was not a business record, but that he also instructed the jury it had not been tendered as such. That assertion is dealt with in the preceding paragraph. As to ground 4(d), his Honour's instruction accorded with his ruling given in respect of P81 referred to above.

204 As to the balance of both grounds 4 and 4A, we will deal with them by reference to the issues raised in both. Subparagraphs (b) and (c) of ground 4A deal with the way in which the trial judge categorized the evidence constituted by P43C and P81 and need to be dealt with together. At the beginning of T362, his Honour begins to link P43C and P81. He firstly links them by reference to the fact that, while all other documentary evidence except the handwritten notations on these documents has been put before the jury as business records, there is no evidence these handwritten notations were part of a business record. He also points out in relation to both that there is no evidence as to who wrote the figures.

205 His Honour then deals with P81. He said in relation to the handwritten notation:

"... it is relevant because it's on what is itself a relevant document which relates to an asserted conspiracy to understate the catch and that amount is relevant to that understatement ... So it's there because you may consider it is evidence that at a time before the two copies of P81, the quota document, ... at a time one might think contemporaneous to the preparation of that document that figure was in the mind of someone ...".

206 His Honour then goes on to refer to the handwritten notation on P43C and says:

"... again that five hundred and seventy one is relevant because of the coincidence that it happens to match the very figure that the prosecution says was decided on for the purposes of the under declaration in that case ...".

207 It is clear from reading his Honour's comments on T362 as a whole, that he erroneously categorized the notation "571" on P43C as the amount of the understatement asserted by the Crown in particular 4, when it was not. He then, based on that incorrect premise, linked the notation on P43C to that on P81 which was asserted by the Crown to be the amount of the understatement in particular 8. In doing so, his Honour made an error.

208 As to the timing and prominence of the instructions given, since the approach adopted by his Honour arose from his incorrect categorization of the evidence, and one which was not put by either counsel in their closing addresses, the first time it was raised was when his Honour did so in his summing-up. Counsel for the appellant raised the issue with his Honour at the next available adjournment. With respect, reading the transcript of the exchange between his Honour and counsel for the appellant (see T367 to T377), we found it confusing. Counsel for the appellant did not clearly or indeed at all, it might be said, make the point he now makes about the inappropriate link between the notation on P43C and that on P81, although he did point out to his Honour that the figure 571 was the declared weight and not the understated amount.

209 When the summing-up was continued with the jury after the above matters were raised in its absence, his Honour made no reference at all to the need for any correction in what he had said. It should be noted that his Honour was not asked to address the jury about the matters complained of by counsel immediately upon the jury's return. Instead what his Honour did was continue with what we infer was his summing up as originally planned. He moved on to deal with particular 2. At 384 of the transcript, his Honour reached particular 4. His Honour dealt with the documents which were said to underpin the Crown's case in respect of that particular, namely P44, P46A and P45 and put the case of the appellant.

210 At T385 he then returned to the issue of the notation on P43C. He said:

"Let me deal with one other matter. I mentioned to you earlier that there is simply an unexplained link with - if you go to page 43C. Would you hand me that please, that's exhibit 43ABC. If you look at - I'm holding 43ABC up, you'll see that it's an original, Rock Lobster Catch, which is signed by - appears to be signed by Mr Stephens, and you'll see on the third page of the photocopy five seven one which is not, as the rest of the document is, in ink and it's very much a matter for you, but it seems to me that the corrections in that document down the - well I don't think there's any disagreement with the corrections in that document down the right hand side in pencil and the five seven one looks to be the result of something being written on in effect copy paper that's transferred through, it's not - if I hold it up for you you can see it's a very faint five seven one. I don't place any significance on that, this is a fact issue for you. Why I drew it to your attention was it was like the other similar appearance on a document, unexplained, but it may well be explained because this of course is the catch and in other rock lobster catch records the amount to be declared has been written in in much the same - that's actually the wrong column but it's very near the right one and it might actually be a deliberate action of someone, in which case it would be the business record. If it was an accidental matter well it's still of relevance in this context because of the relevance of five seventy one to this particular charge - aspect, I beg your pardon, of this particular."

211 In our view, his Honour did not, in those remarks, make it clear that he had made errors in his earlier remarks and correct those errors. He took the jury to P43C. He initially appears to have maintained the link to P81 by saying, "Why I drew it to your attention was it was like the other similar appearance on a document, unexplained". However he then goes on to say that it may well be explained because:

"... this of course is the catch and in other rock lobster catch records the amount to be declared has been written in much the same - and it might actually be a deliberate action of someone, in which case it would be the business record. If it was an accidental matter well it's still of relevance ... because of the relevance of five seventy one to this particular charge - aspect ... of this particular."

212 In these last comments his Honour firstly appears to correct the earlier factual error to identify that the figure is the amount declared but continues to emphasize its relevance to particular 4. His Honour went on to complete his summing up. He then asked both counsel if there was anything arising and neither counsel sought to raise anything for correction or clarification with the jury. Counsel for the appellant did raise another issue the next day but it did not relate to these grounds of appeal. Counsel therefore did have an opportunity to clearly explain to the trial judge that there were matters which still needed addressing and did not take it.

213 It must be accepted that there were specific errors made by the trial judge as asserted in grounds 4 and 4A. The concern is that there is a real risk that the jury were misled as to the significance of P43C and its relationship with P81. The jury may very well have been influenced by being told there were two particular documents with this unexplained writing on them which were relevant to understated amounts, and reasoned that because there were two they could give them greater weight. The fact of the matter is P43C was not in itself incriminating. It appears to have been tendered as a business record and indeed been one, there being evidence of a similar pattern on other documents of someone writing the amount of fish caught and declared on a docket, and it otherwise had no real link to P81, which was potentially incriminating. It may very well not have been the Crown's case that P43C was incriminating in itself. However that was an inference which might have been drawn from his Honour's comments to the jury. We will later deal with the consequences of these grounds having been made out.

214 Ground 6 of the notice of appeal is in the following terms:

"6 That the jury's verdict was unsafe and unsatisfactory because:-

(a) none of the makers of any of the previous representations in the incriminating exhibits were called to give evidence by the Crown;

(b) there was no evidence of the identity of the makers of the previous representations in any of the incriminating exhibits;

(c) there was no evidence of the reliability or accuracy of systems underpinning the generation or calculation of the previous representations in the incriminating exhibits;

(d) accordingly the appellant was wholly denied any opportunity to test by cross-examination the accuracy or reliability of the previous representations in the incriminating exhibits."

215 Senior counsel for the appellant submitted that the use of the phrase "unsafe and unsatisfactory" in this ground of appeal was quite deliberate and intended to bring the ground within the Criminal Code, s402. He referred to remarks of Evans J in Loone v Tasmania [2008] TASSC 7, where at pars[96] - [98], his Honour dealt with an appeal confined solely to this ground. His Honour there said:

"96 Although the Code makes no express reference to a ground of appeal that asserts that a verdict is unsafe or unsatisfactory, it is well recognised that a ground expressed in those terms may come within one or more of the grounds specified in s402(1); see for example M v R [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ at 492. The specified grounds are that the verdict should be set aside because:

(ii) it cannot be supported having regard to the evidence;

(iii) of a wrong direction on any question of law; or

(iv) on any other ground whatsoever there was a miscarriage of justice.

97 Whilst a ground of appeal that asserts that a verdict is unsafe or unsatisfactory is recognised, courts discourage reliance on the ground as the phrase 'unsafe and unsatisfactory' has no very precise meaning (Gipp v R (supra), Gaudron J, par17) and its use is likely to mislead (Gipp v R (supra), Kirby J, par125). In Fleming v R (1998) CLR 250, Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ said at par12:

'The fundamental point is that close attention must be paid to the language of s6(1) of the Criminal Appeal Act. [This New South Wales provision is in similar terms to the Code, s402(1).] Use of the potentially confusing phrase "unsafe and unsatisfactory" to cover the several different elements in the sub-section is liable to mislead. There is no substitute for giving attention to the precise terms in which s6(1) is expressed.'

98 In Giam v R [1999] NSWCCA 53; (1999) 104 A Crim R 416, Spigelman CJ, agreed with by Abadee and Adams JJ, said at par31 that a ground of appeal that a verdict is 'unsafe and unsatisfactory' is no longer appropriate, and, at par44, that it would be preferable in future to identify such a ground as a 'miscarriage of justice' or use other terminology in accordance with the equivalent of the Code, s402(1), together with an appropriate degree of particularity. I endorse that view. ...".

216 In M v R [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deanne, Dawson and Toohey JJ dealt with the role of an appellate court when dealing with the question of whether a conviction could be said to be unsafe or unsatisfactory. At 492 their Honours noted that the question was one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand". At 493 their Honours continued:

"But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v The King, Isaacs J said (11 [1919] HCA 45; (1919) 27 CLR 13 at 23) :

'If (the appellant) can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.'

And as the Court observed in Davies and Cody v The King (12 (1937) 57 CLR at 180.), the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:

'not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.'

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilt [references omitted]. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [reference omitted]."

217 The role of an appellate court in a matter such as the present one was confirmed by the High Court in SKA v R [2011] HCA 13; (2011) 243 CLR 400 at 405 [11], applying M v R (above). French CJ and Gummow and Kiefel JJ noted that the parties had agreed that:

"... the relevant function to be performed by the Court of Criminal Appeal in determining an appeal was whether, as stated in M v The Queen, the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

"In determining an appeal pursuant to the Criminal Appeal Act, s6(1), by applying the test set down in M v The Queen, the court is to make 'an independent assessment of the evidence both as to its sufficiency and its quality."

218 When asked, senior counsel for the appellant identified that, by reference to the quotation from Davies and Cody contained within that from M v R (above), it was really the first type of difficulty relied on for the purposes of the present case; that is "some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial". After some hesitation he then added that probably the second difficulty noted might also be relevant "because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled".

• the only incriminating evidence against the appellant were documents said by the Crown to be incriminating;
• almost the entirety of these documents had been admitted into evidence on the basis they were business records, and objections by reference to the Evidence Act, ss69 and 169, were made, but were unsuccessful;
• it followed that none of the makers of any of the previous representations in the documents were called by the Crown to give evidence;
• there was no evidence of the identity of the makers of the previous representations;
• there was no evidence about the system or systems pursuant to which any of the previous representations in the documents were brought into existence;
• as a consequence of the above, the appellant was denied the opportunity to test the accuracy, reliability or any aspect of the previous representations by cross-examination;
• in every case, save in respect of particular 1, the jury was left with documents, some of which were said to be incriminating and some of which were not, and was required to determine the appellant's guilt or innocence by reference to those documents. The jury was unable, because of the matters set out above, to properly determine the weight to be given to the various documents; and
• the Crown's case was wholly circumstantial.

220 These submissions are consistent with this Court being asked to conclude that the verdict was unsafe and unsatisfactory in the sense as discussed in SKA, warranting an independent assessment of the evidence. That is, the verdict is unsafe and unsatisfactory as being unreasonable or not capable of being supported having regard to the evidence. For the following reasons, it is not necessary to further consider the ground. We have already found grounds 1(d), 2, 4 and 4A to have been made out. In respect of the first two grounds, that means that there was evidence before the jury which arguably ought not to have been. These are matters which this Court cannot determine for itself. The established errors as alleged in grounds 4 and 4A mean that there is a real and unacceptable risk of a miscarriage of justice.

221 The grounds found to have been made out combine to compel the result that the appeal against conviction should be allowed. To the extent that ground 6 is based on the miscarriage of justice approach, it has subsumed within it some of the complaints which have been upheld in the earlier grounds. To the extent that we have been invited to do so, it is unnecessary and undesirable to consider the ground on the basis that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

222 It follows from what we have said that the appeal against conviction should be allowed. The conviction should be quashed. The sentence and the pecuniary penalty order should be set aside, and there will be an order that the appellant be retried.

223 Notwithstanding the outcome of the appeal against conviction, because of the order for re-trial it is probably desirable that we say something about the appeal in relation to this order. As noted at the beginning of these reasons, on 4 October 2011 at the time of being sentenced, the trial judge ordered pursuant to the Crime (Confiscation of Profits) Act 1993 ("the Act"), that the appellant pay a pecuniary penalty in the sum of $120,220.25. His Honour said the following when making the order:

"The second thing I deal with is the application for a pecuniary penalty. The conspiracy with which the defendant has - of which the defendant has been convicted occurred over the - ran over a period of in excess of four years. The evidence satisfies me that the wholesale value of the rock lobster that came into the possession or under the control of the defendant or Southern United at the request or direction of the defendant by reason of the conspiracy's operation is as detailed in the particulars to the indictment and in the evidence and total one hundred and twenty thousand two hundred and twenty dollars and twenty five cents. Consistent with the claim (sic) Compensation of Profits Act [1993] s22 ss6, no expenses are to be deducted from that amount. I accordingly assess the pecuniary penalty payable by the defendant at that amount and order that he pay that pecuniary penalty. I now go to my comments in relation to the sentencing of Mr Lin. Mr Lin, you remain seated throughout this."

224 That order is the subject of four grounds of appeal. They are as follows:

(a) failing to undertake an assessment of the value of the benefits derived by the appellant from the commission of the conspiracy;

(b) wrongly undertaking or purporting to undertake an assessment of the value of the benefits derived by the appellant from the commission of the 12 particularised offences contrary to s265(a) of the Living Marine Resources Management Act;

(c) wrongly assessing the value of the benefits derived by the appellant as being the wholesale value of the additional crayfish obtained by him, without having regard to the price paid by the appellant for the crayfish;

(d) failing to make any finding as to the weight of crayfish received by the appellant pursuant to the conspiracy, or alternatively to the extent that the learned trial Judge did so find, failing to expose any or any adequate reasons or reasoning for the finding."

225 The Act, s11(1)(b), provides for an application to be made for a pecuniary penalty order where a person is convicted of a serious offence. There is no dispute in this matter that the crime of which the appellant was convicted was a serious offence. The section further provides that any pecuniary penalty order may be made:

"... in respect of benefits, including any commercial benefits, derived by the person from the commission of the offence."

226 A benefit is defined in the Act to include "service or advantage". A commercial benefit is defined in the Act to mean:

"(a) a benefit obtained from the publication or prospective publication of material in relation to the commission of an offence; or

(b) a benefit obtained from the commercial exploitation in any other way of notoriety."

227 Part 2 of the Act deals with confiscation generally. Division 3 of that part deals with pecuniary penalty orders and contains ss20 - 24 inclusive. The Act, s20, provides:

(a) property that comes into the possession or under the control of a person, whether in Tasmania or elsewhere and whether before or after the commencement day; and

(b) benefits, including commercial benefits, that are provided to a person, whether in Tasmania or elsewhere and whether before or after the commencement day."

(1) If a person has been convicted of a serious offence and an application is made to a court under section 11(1)(b) for an order in respect of the offence, the court may -

(a) assess in accordance with section 22 the value of the benefits, including any commercial benefits, derived by the person from the commission of the offence; and

(b) order the person to pay to the Crown a pecuniary penalty equal to the value so assessed.

controlled substance means a controlled substance within the meaning of the Misuse of Drugs Act 2001;

offence period, in relation to an application under section 11(1)(b) made in relation to 2 or more serious offences, means the period commencing when the earliest of those offences was committed and ending when the latest of those offences was committed.

(2) For the purposes of an application for a pecuniary penalty order against a person (in this subsection called 'the defendant') the value of the commercial or other benefits derived by the defendant from the commission of a serious offence or serious offences is to be assessed by the court having regard to the evidence before it concerning all or any of the following:

(a) the money, or the value of the property other than money, that came into the possession or under the control of -

(ii) another person at the request or direction of the defendant -

by reason of the commission of the offence or any of the offences;

(b) the value of any other benefit provided to -

(ii) another person at the request or direction of the defendant -

by reason of the commission of the offence or any of the offences;

(6) In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of a serious offence or serious offences, any expenses or outgoings of the person in connection with the commission of the offence or offences are to be disregarded.

229 In dealing with an application for a pecuniary penalty order, the Court may also "lift the corporate veil". Section 23 provides:

"(1) In assessing the value of commercial or other benefits derived by a person from the commission of an offence, a court may treat as property of the person any property that, in the opinion of the court, is subject to the effective control of the person.

(2) On an application by an authorized officer a court may, if it is satisfied that particular property is subject to the effective control of a person against whom the court has made a pecuniary penalty order, make an order declaring that the whole, or a specified part, of that property is available to satisfy the pecuniary penalty order.

(3) If a court declares that property is available to satisfy a pecuniary penalty order -

(a) the order may be enforced against the property as if the property were property of the person against whom the order is made; and

(b) a restraining order may be made in respect of the property as if the property were property of the person against whom the order is made.

(4) If an authorized officer makes an application for an order under subsection (2) that property is available to satisfy a pecuniary penalty order made against a person -

(a) the authorized officer is to give written notice of the application to the person and to each person who the officer has reason to believe may have an interest in the property; and

(b) the person and each person so notified, and any person who claims an interest in the property, may appear and adduce evidence at the hearing of the application."

230 The Act, s71, provides that a court is to decide any question of fact on an application under the Act on the balance of probabilities.

231 The issue of a pecuniary penalty order was dealt with somewhat briefly at the time at which counsel for the Crown stated facts following the jury verdict, and counsel for the appellant made a plea in mitigation. Counsel for the Crown said (this appears at 428 of the transcript):

"Now with the three and a half tonnes involved - with a lesser payment of about three dollars a tonne, that financial saving is only in the order of ten thousand dollars. There is a greater - much greater amount, and assuming that he's making a profit of say $20 per tonne, that would make an extra seventy thousand dollars being available to him, but a greater benefit still was probably having the availability of a greater proportion of rock lobsters than perhaps other processors had, so that would-be purchasers, whether they be restaurants in Victoria or elsewhere in Australia or whether they be overseas purchasers in Hong Kong or other places, would naturally look to somebody with larger supplies and able to supply them more often and it's - I suggest that that ability to have larger supplies satisfy the market is likely to have been a major reward in attracting business to him, and perhaps, a reason why his business seems to have grown very successfully."

Counsel for the Crown then advised the Court that what he was seeking by way of a pecuniary penalty was the sum of $120,220. Counsel for the appellant correctly pointed out that there was no direct evidence about most of the matters that counsel for the Crown had raised.

232 His Honour adjourned for a period to consider the sentence to be imposed, and gave the parties the intervening time to consider their position in relation to the pecuniary penalty. On resumption, counsel for the Crown "retreated" from the figure of $120,220 and "withdrew" that figure. However, after some discussion between his Honour and counsel for the Crown, counsel effectively came back to the figure he started with. He acknowledged that this was "based on those numbers of kilograms - times the price obtained at the time for the balance of the rock lobster"; that is, the "on-docket" lobster. That is, the benefit said to have been obtained by the appellant and his business from the commission of the offence was the value of the 3,545kg calculated by reference to the price the appellant/the business paid Mr Stephens for the rock lobster bought from him which was correctly declared or, "on-docket".

233 The submissions of counsel for the appellant at trial as to the issue of pecuniary penalty appear at T441 to T445. At T442, counsel submitted, in the course of discussion with his Honour, that the Court had to have regard to what the appellant had paid out for the fish because, "it's the value of the commercial benefits derived" his Honour had to consider. Counsel went on to suggest to his Honour that:

"... your Honour will see that benefit is defined inconclusively (as) a service or advantage. So that with respect your Honour is obliged to look at the advantage that was procured by virtue of it and that can only be in this context a procurement of cheaper fish."

234 With respect, counsel's submissions as to the meaning of certain terms in the Act have to be wrong. Firstly, the term "benefit" is not defined to mean a service or advantage. It is defined to include a service or advantage. They are two different things. Secondly, the term "commercial benefits" can have no application in this case. If regard is had to the wording of the definition, it is quite clear that it is not directed to the type of situation being dealt with in this case. It is directed to someone making money out of publishing a story about their criminal activities, or in some other way profiting from notoriety relating to those activities.

235 Ultimately what counsel submitted was that the advantage or benefit obtained by the appellant was a saving in the cost of the fish. That is, it was the difference between what the appellant would normally have paid for the fish, had it been properly declared, and what he actually paid for it.

236 Counsel for the appellant made a number of submissions in support of his grounds of appeal. None of the propositions he put, it would be fair to say, were supported by authority.

237 Ground 7(a) asserted a failure to undertake an assessment of the value of the benefits derived by the appellant from the commission of the conspiracy. Counsel submitted that the appellant had not been convicted of any offence under the LMRM Act. Had he been, then clearly the Court could have had regard to the value of fish illegally obtained for the purpose of calculating a pecuniary penalty. Counsel submitted that the crime of conspiracy was constituted by an agreement. His Honour did not assess the value of any benefits flowing from that agreement.

238 While not clearly stated, it seemed to be counsel's position that either there were no benefits derived from the agreement established on the evidence such as to allow his Honour to make a pecuniary penalty order at all, or, if there were, his Honour should have permitted a deduction for the cost to the appellant of the fish he purchased from Mr Stephens. With respect this is illogical. If it was proper for his Honour to determine the value of benefits to the appellant and his business by reference in some way to the value of the fish he obtained "off-docket", then there is no basis, having regard to the Act, s22(6), for an allowance to be made for the expense incurred in buying that fish.

239 Counsel went on to say that, in any event, there was no dispute that what the appellant saved by buying the "off-docket" fish at a discounted rate should underpin any penalty ordered. That submission seemed to be at odds with earlier submissions.

240 The situation may be clearer if the application for the penalty is examined within the framework of the Act. Counsel for the Crown applied for the pecuniary penalty order against the appellant. The order sought could be made in respect of benefits derived from the commission of an offence. The appellant was convicted of the crime of conspiracy to commit a crime, namely crimes against the LMRM Act. The conspiracy was one he personally entered into with Mr Stephens. As a consequence of that conspiracy, the appellant's business came into possession of a quantity of undeclared rock lobster, that is rock lobster that it was not entitled to have possession of. The Act, s22(2)(a), permitted the Court to assess the value of benefits for the purpose of calculating a pecuniary penalty having regard to evidence before it concerning the value of any property which came into the possession of either the appellant or another person at his request or direction "by reason of the commission of the offence". The only conclusion to be drawn from the evidence before the Court was that SUS came into possession of the "off-docket" rock lobster at the appellant's direction.

241 The next question is however, did that business come into possession of the "off-docket" rock lobster by reason of the commission of the offence? With respect we are unable to see how that could not be so. Had the appellant not entered into the conspiracy, his business would not have received the "off-docket" rock lobster. It follows that the Court was entitled to look to the value of the "off-docket" rock lobster which came into the possession of SUS for the purpose of calculating the pecuniary penalty.

242 Save for the caveat contained in s22(6), the Act does not provide detailed guidance as to exactly how a pecuniary penalty should be calculated. His Honour formed the view that the wholesale value of the "off-docket" rock lobster was the appropriate value to ascribe to the benefit received. With respect, counsel for the appellant has said nothing which might persuade us that approach was wrong. His Honour then had regard to s22(6), and determined it was not appropriate to deduct from that value the cost of the fish. Again, nothing said by the appellant's counsel has persuaded us that this approach was wrong.

243 Counsel for the appellant also submitted that the trial judge failed to make any finding as to the weight of the rock lobster received by the appellant pursuant to the conspiracy. Even if he did, he failed to expose any adequate reasoning for the finding in part because he did not appear to draw any conclusion as to which of the 12 particularised offences were in fact established by the evidence.

244 With respect, this criticism is without merit. His Honour found the conspiracy ran for over four years (that is the period covered by all 12 of the particularised transactions). He also said he was satisfied that the rock lobster which came into the possession of the appellant and his company was "as detailed in the particulars to the indictment and in the evidence". The particulars to the alternative count on the indictment, which was that upon which the appellant was convicted, detail that the first offending identified occurred on 15 July 2001 and occurred again at least on 10 December 2001, 19 December 2002, 21 June 2003, 28 July 2003, 30 March 2004, 22 June 2004, 4 August 2004, 22 January 2005, 23 April 2005, 29 June 2005 and 2 August 2005. It was abundantly clear that his Honour accepted that offending occurred on all those dates, which was consistent with the jury verdict.

245 The same particulars identify the gross weight of fish caught and that declared, making it a simple exercise to determine the weight of the "off-docket" fish. In our view, his Honour did not need to repeat the particulars in his findings given it was clear upon what basis he was making his determination.

246 Counsel for the Crown identified in a table attached to his submissions on this appeal the actual calculations which we accept underpinned his Honour's calculation of benefits. While the figure in that table is marginally different from the assessment his Honour made, his Honour's assessment is to the benefit of the appellant and is so small that no error capable of supporting a successful appeal in respect of the penalty has been demonstrated.

247 Were it to be necessary to decide, ground 7 in all its parts should fail.

248 The appeal against conviction should be allowed and the sentence and the order under the Crime (Confiscation of Profits) Act quashed. There should be an order that the appellant be retried on the indictment.

(d) to cheat or defraud the public, or any particular person, or class of persons;

[3] The two documents essentially record the same information. There appears to have been a change in the descriptive title at some stage in the relevant period.

[5] Evidence was given at the trial by an interpreter to that effect.

(a) an express or implied representation, whether oral or in writing; and

(b) a representation to be inferred from conduct; and

(c) a representation not intended by its maker to be communicated to or seen by another person; and

(d) a representation that for any reason is not communicated;

[7] P18 and P18A might also fit into this category. P18 is a handwritten invoice from the partnership to SUS. This shows the amount which the Crown alleges is the total undeclared weight. There are other similar documents but which show the alleged lesser weights. Although on its face it is a partnership invoice, P18 was found with the bank deposit slip in the SUS records, with no equivalent copy being found in the partnership records. A comparison of the handwriting on these invoices with other SUS documents might suggest that it was generated within SUS and not within the partnership.