Criminal Law - Jurisdiction, practice and procedure - Miscellaneous powers of courts and judges - Subpoena duces tecum - Setting aside and striking out of parts.

Crown: M Rozenes QC, K E Read, J Read & I M Arendt

Applicants (Recipients of Subpoenas): G Livermore

Crown: Commonwealth Director of Public Prosecutions

First Accused: Jennings Elliott as agents for: Iles Selley

Third Accused: Jennings Elliott as agents for: John Lister

Fourth Accused: Jennings Elliott as agents for: Coates PL

Fifth Accused: Jennings Elliott as agents for: Lynch & Meyer

Applicants: Commonwealth Director of Public Prosecutions

Judgment Number: [2001] TASSC 102

1 On 16 August 2001 I refused an application for the setting aside of two subpoenas. These are my reasons for rejecting that application. The earlier of the two subpoenas was issued on 7 June 2001 and addressed to "The Officer in Charge of the Hobart Office of the Australian Federal Police". As it was the second subpoena addressed to the Australian Federal Police ("AFP") in these proceedings, it has become known as AFP-2. The later of the two subpoenas was issued on 18 July 2001 and addressed to the Commonwealth Director of Public Prosecutions ("the DPP"). As it was the second subpoena addressed to him in these proceedings, it has become known as DPP-2. It should not have been issued because the Criminal Procedure (Attendance of Witnesses) Act 1996 ("the 1996 Act") commenced on 1 July 2001, and s18(1) thereof requires that subpoenas no longer be issued or used in criminal proceedings in this State. A notice under that Act should have been used instead. However the DPP has decided not to take any point as to that irregularity.

2 Subpoena AFP-2 seeks the production of copies of the applications made for eight search warrants, and any documents relied upon in support of such applications, including affidavits or informations. I have previously held that the eight search warrants were invalid, and that anything obtained pursuant to them was illegally obtained: R v Turner (No 4) [2001] TASSC 51 at par63. I have decided to determine prior to the empanelment of a jury, pursuant to the Criminal Code, s361A(d), whether any documents obtained pursuant to those warrants should be excluded from the evidence in the exercise of the Court's discretion relating to evidence illegally obtained.

3 Subpoena DPP-2 seeks the production of certain documents relating to some advice given by Mr Weinberg QC (as his Honour then was) in or about November 1993. I determined on 27 July 2001 that a notice under the 1996 Act seeking any of the documents referred to in pars5 - 9 of that subpoena would constitute an abuse of process, but that a notice seeking the documents required in pars1 - 4 thereof would not. Paragraphs 5 - 9 have not been the subject of any subsequent submissions. Paragraphs 1 - 4 seek the production of documents provided to Mr Weinberg QC for the issue of the first four of the invalid search warrants when he was briefed to settle such warrants and the informations or affidavits used to obtain them.

4 When the Crown first applied for the setting aside of these subpoenas last month, defence counsel identified two forensic purposes for seeking access to the documents described in them. Firstly, it was submitted that it was "on the cards" that the documents sought would materially assist the accused by facilitating the adducing of evidence on the voir dire to support a submission that the documents seized pursuant to the invalid warrants should be excluded as illegally obtained evidence. Secondly, it was submitted that it was "on the cards" that the documents sought might materially assist one or more of the accused with an "impossibility" defence. I rejected the first submission, holding that it was not "on the cards" that the documents sought might assist in relation to the discretionary exclusion of the evidence illegally obtained. However I accepted the submission based on the "impossibility" argument.

5 I subsequently decided to determine whether an "impossibility" defence could be available, and came to the conclusion that no such defence could be available: R v Turner (No 8) [2001] TASSC 86. I need not explain again the nature of the suggested defence, nor the reasons it was not available.

6 Not surprisingly, a second application was made for the striking out of these two subpoenas. No argument was advanced on behalf of the accused in relation to the "impossibility" defence, but it was argued that new evidence that had become available since my previous refusal to strike out the subpoenas suggested that, contrary to my ruling on 27 July, it was now "on the cards" that the production of the documents sought would materially assist the defence in relation to the attempt to have the illegally obtained evidence excluded. In particular, defence counsel relied on evidence that has been given by a number of Crown witnesses in the course of a Basha inquiry. See Basha v R (1989) 39 A Crim R 377 at 339. As a result of an agreement reached by counsel, the documents sought by the subpoenas were edited by Mr Holdensen QC to remove material that was subject to a claim for public interest immunity. It was agreed that copies of the documents as so edited would be produced in the event of the application being unsuccessful.

7 Mr Edwardson also made it clear that the discretionary exclusion argument which was relied upon as the basis for a legitimate forensic purpose for access to the documents was not confined to illegally obtained evidence seized pursuant to the eight invalid search warrants. Defence counsel propose to base their submissions on the Court's discretions as to both illegality and unfairness.

8 The documentary evidence sought to be excluded will include returns as to orange roughy catches said to have been submitted by receivers or fish processors. The regulation that purported to compel receivers to submit such forms in 1992 (Fisheries Regulations, reg15A) was of no effect because a purported management plan under the Fisheries Act 1952 was void. Receivers were under no obligation to submit such returns in 1993 because the Fisheries Management Act 1991 did not then allow AFMA to compel them to submit returns, except by a mechanism that was inapplicable in the circumstances. They were apparently issued with forms of returns by AFMA throughout 1992 and 1993 and commanded to complete them. The forms warned of fines and other penalties if they were not completed or were completed inaccurately. It is argued that all returns submitted to AFMA by receivers were illegally and unfairly obtained.

9 I turn to consider the relevant evidence that was given on the Basha inquiry. AFMA did not come into existence until 3 February 1992 - the day on which the Fisheries Administration Act 1991 and the Fisheries Management Act 1991 both commenced. Prior to that day, the Commonwealth administered fisheries through the Australian Fisheries Service ("AFS"), which apparently formed part of the Department of Primary Industries and Energy. A minute from one AFS officer to another dated January 1992 was produced during the Basha inquiry, and was tendered on the voir dire in relation to the present applications. Its author was the Acting Assistant Manager, Licensing and Surveillance, Mr Bill Anderson. He sent it to his superior, the Manager, Licensing and Surveillance, Mr Peachey. The Minister had decided that orange roughy fishing in the area of the "South East Fishery" would be regulated in 1992 by means of a management plan pursuant to the Fisheries Act 1952 ("the 1952 Act"). That was the void management plan that I have referred to above. It provided for operators in the fishery to be allocated individual transferable quotas, limiting their catches of orange roughy. The Full Court of the Federal Court has held that it was void: Coleman v Gray (1994) 55 FCR 412. I accept that, at the time of the minute of January 1992, it had not occurred to any AFS officers that it might be void. However it appears from Mr Anderson's minute that the AFS permitted orange roughy fishing in the area of the "South East Fishery" prior to them obtaining their licenses for 1992, and therefore completely illegally. The fishermen were committing offences contrary to the 1952 Act, s13(1)(b), by using boats for taking fish in an area of proclaimed waters without any appropriate licence being in force. Mr Anderson wrote the following to Mr Peachey:

"The current situation is complicated by the fact that nobody is fishing legally due to the non assignment of quota and associated non issue of licences. Licences cannot be issued until quota has been paid for and assigned to a boat. Considering that quota allocation notices were not sent out until very late in December, and taking into account that fishermen were given until 15 February to pay their first levy instalment, it was decided that it would be inappropriate to prosecute for offences relating to fishing without a licence - at least for a reasonable period of time."

10 It seems that AFS officers were willing to put pragmatism before the rule of law. It seems also that, at least generally speaking, the staff of the AFS became the staff of AFMA upon its formation.

11 There is a body of evidence which tends to suggest that during 1992 some AFMA officers perceived that processors of orange roughy caught in the "South East Fishery" were under no legal duty to complete or submit forms recording the quantities of orange roughy and other species from the "South East Fishery" processed by them, but continued to insist on processors completing and submitting such forms, and continued to provide them with such forms, which contained false and misleading statements as to penalties for not completing and submitting the forms, and for furnishing false information.

12 The legal situation in relation to these forms is very complex. The Fisheries Management Act did not authorise the making of regulations for the completion of log-books and the submission of returns by receivers of fish. In relation to waters that were the subject of plans of management determined under s17 thereof, permits granted to receivers could impose conditions as to log-books and returns. However no plan of management under that Act applied to any relevant waters at any relevant time. It follows that receivers were not obliged to complete or submit returns in relation to orange roughy taken in the "South East Fishery" from 3 February 1992 onwards. However it was generally believed, falsely, that the Fisheries Management Act did not apply to orange roughy fishing in the "South East Fishery" prior to 1 January 1993. That was because licences had been issued in accordance with the terms of the 1991 management plan. It was falsely believed that the management plan and the licences were valid. If they had been valid, the Fisheries Legislation (Consequential Provisions) Act 1991, s6, would have continued the operation of the 1952 Act in respect of orange roughy fishing in the "South East Fishery" until 31 December 1992.

13 The body of evidence that I have referred to suggests that AFMA officers, falsely believing that the 1952 Act still applied in relation to such orange roughy fishing, had a perception that receivers were not obliged to submit returns in relation to the orange roughy that they received and processed. It is therefore necessary to explain the position concerning receivers under the 1952 Act. That Act, s17(1)(f), authorised the making of regulations as follows:

"(f) for providing for the furnishing of returns containing information in relation to -

(i) the taking of fish in Australian waters and the sale or disposal of such fish;

(ii) the processing of fish in Australia or in Australian waters and the sale or disposal of fish so processed".

Thus a regulation could be made requiring a receiver/processor to furnish returns containing information in relation to the sale or disposal to that receiver of fish taken in Australian waters, or in relation to the processing of fish in Australia by that receiver.

14 Prior to 19 December 1991, the only provision in the Fisheries Regulations requiring processors to lodge returns was reg15, which applied only to persons who received prawns for processing "at a place in Australia north of the parallel 20 degrees south latitude". However those regulations were amended on that day by inserting a new reg15A, which read as follows:

'Management Plan' means the South East Fishery (Individual Transferable Quota) Management Plan made by the Minister on 9 December 1991 and published in the Gazette on 9 December 1991;

'receiver' means a person who receives SEF species for processing for trade, or for sale by wholesale or retail, except:

(a) a person who receives SEF species for which a receiver is already required to lodge a return under subregulation (4); or

(b) a person who receives SEF species only for the purpose of transporting the fish from one place to another;

(a) the species of fish specified in Schedule 1 to the Management Plan; and

(2) This regulation applies only to SEF species taken by a boat in relation to which units under the Management Plan have been allocated or have been assigned as a result of a transfer.

(3) This regulation applies to receivers who operate in New South Wales, Victoria, Queensland, Western Australia, South Australia or Tasmania on or after 1 January 1992.

(4) A receiver who receives SEF species on any day must, within 24 hours after the end of the day, complete a return that contains the particulars specified in subregulation (8).

(5) The return must be in the form approved by the Minister.

(6) A receiver who is required to complete a return in any week ending at the end of a Sunday must give the Department a return before the end of the following Tuesday.

(7) A return may be sent or delivered to the Department at the address specified in the return form.

(8) For the purposes of subregulation (4), the following particulars are specified:

(b) the address of the depot at which the receiver received the SEF species; and

(c) the name (in block letters) of the individual who takes delivery of the SEF species for the receiver; and

(f) the date on which the receiver received the SEF species; and

(g) the quantity (in kilograms) of each SEF species that the receiver received in each of the following forms:

15 The management plan referred to in reg15A is the invalid management plan that I have referred to above. Orange roughy was one of the species specified in Schedule 1 to that plan, and was thus an "SEF species" for the purposes of reg15A. The new regulation did not ever have any effect because subreg(2) made its operation dependent upon the allocation of units under the management plan, and that plan was a nullity. However I am concerned here with AFMA officers' perceptions, and thus with the situation that would have existed if the plan had not been a nullity.

16 The Acting Minister published a log-book notice in the Gazette on 12 November 1991 purporting to determine a form of log-book to be used in accordance with the Fisheries Regulations. However that notice pre-dated reg15A, and therefore could not have had any legislative effect in relation to receivers. Regulation 15A(5) required the returns completed by receivers to be "in the form approved by the Minister". When I raised the question whether the Minister had approved a form after the making of this regulation, counsel for the DPP and AFP obtained an overnight adjournment. Copies of some Ministerial papers dated 12 November 1991 and kept in AFMA's records were produced the next day, and have been tendered on the voir dire. However it was not suggested that the Minister approved a form for the purposes of reg15A(5) after the making of that regulation. Instead, Mr Read submitted on behalf of the Crown that the words "the form approved by the Minister" were intended to refer to the form of log-book previously approved by the Minister when he published the log-book notice that applied to fishermen. The proper interpretation of reg15A(5) may not be important, since it is the perceptions of AFMA officers that is significant. However I consider that it ought to be interpreted as referring to an approval after the making of the regulation. A Minister can hardly approve a form of log-book for the purposes of a regulation prior to the Governor-General making that regulation.

17 The result of all this is that if, as seems to be the case, the Minister did not approve a form of return for the purposes of reg15A after that regulation was made, there was scope for AFMA officers, falsely believing the 1991 management plan to be valid and the 1952 Act to be continuing in force until the end of 1992 to think that the receivers of orange roughy caught in the "South East Fishery" were not obliged to complete and submit returns as to the fish delivered to them for processing.

18 In the minute of January 1992 that I have referred to, Mr Anderson wrote the following:

"However, on examining the relevant Fisheries Notices it would seem that the only enforceable offence currently being committed would be failure of Masters to complete SEF1 and SEF2 catch reports."

19 An AFMA officer named Ryan gave evidence during the Basha inquiry. He was the manager of AFMA's Monitoring Unit from February 1992 to January 1993. During cross-examination he was asked whether he was aware as early as January 1992 that the only enforceable offence that was created by the log-book notice was with respect to failure by masters to complete forms. He replied in the affirmative, and said that that sounded familiar. He was referred to the passage that I have quoted from Mr Anderson's memorandum, and said that he did not know when he became aware that that was Mr Anderson's opinion, implying that he did become so aware at some stage. He was shown a copy of the form that was circulated to processors, and accepted that it warned them of penalties for non-compliance. After being shown some documents during his cross-examination, he conceded that he knew AFMA had no legal ability to demand the information that was sought from receivers, and that he took no steps to withdraw the forms. He said he did not recall taking any steps to advise the industry that the forms contained misleading information, and was unaware of any steps to tell receivers that they were under no legal compulsion to provide information. He conceded that no steps were taken to correct the problem concerning returns by receivers for 1992, though steps were taken to improve the system for subsequent years.

20 Mr Ryan sent a fax to a number of people apparently involved in monitoring compliance with quota restrictions on 12 August 1992. He sought their views on proposed changes to the arrangements concerning log-books. Amongst other things, he sought comment on a proposal to amend the Fisheries Management Act. He had realised that receivers could be required to keep records and furnish returns through the mechanism of fish receiver permits issued in connection with plans of management, but that no such obligations could be placed upon receivers in relation to fish taken otherwise than in accordance with plans of management, eg, fish taken pursuant to s32 fishing permits. This establishes that, as early as August 1992, it was realised that AFMA had no statutory authority for commanding receivers to keep records and submit returns under the new legislation except when a plan of management was in force and applicable. Throughout 1993, when the new legislation was in force and AFMA officers realised it was in force, no relevant management plan was in force but AFMA continued to insist on receivers completing and furnishing returns as to orange roughy catches, despite the realisation that they had no legal duty to do so. Initially forms prepared for the purpose of the 1991 management plan were used. These advised receivers of penalties for non-compliance and false statements. During 1993, as stocks of new log-books became available, AFMA insisted on receivers completing the new forms, which also asserted that penalties were applicable for non-compliance and false statements. As there was no legal obligation to submit the forms, the assertions as to penalties for non-compliance were false, though the submission of false information was an offence by reason of the Fisheries Management Act, s107.

21 The amendments on which Mr Ryan sought comment in August 1992 were eventually made in late 1994: Primary Industries and Energy Legislation Amendment Act (No 2) 1994. In the meantime, AFMA did nothing to reform its practices, but waited for the law to fall in line with them.

22 This indicates a disturbing disregard for the rule of law by AFMA, at least at management level. When AFMA's practices were not in accordance with the law, AFMA did nothing to reform its practices, hoping that the law would one day be changed to accord with them. Those affected by practices that were not in accordance with the law were told nothing. Instead, AFMA officers systematically kept up a pretence that the law was as they wanted it to be.

23 On the evidence before me, I cannot tell how far within AFMA management this disregard for the rule of law spread. I have no reason to think that it was shared by any of the AFP officers who sought and obtained the eight invalid search warrants. However it could well be that AFMA officers kept from AFP officers information that ought properly have been given to them and passed on to the magistrates who issued the warrants.

24 A person applying for a search warrant has a duty to disclose all information material to the decision whether or not to issue the warrant: Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 480 - 481. The failure to disclose information unknown to the applicant can invalidate a search warrant if the information was known to the applicant but forgotten, or if the applicant's ignorance results from wilful blindness or other bad faith: Lego Australia Pty Ltd v Paraggio (1993) 44 FCR 151. See also Smith v McLoughlin [1999] TASSC 24; (1999) 103 A Crim R 285. Of course I have already held the eight warrants to have been invalid on grounds unconnected with non-disclosure. However evidence of any improper non-disclosure by any of the AFP officers who applied for the warrants, or of any deliberate withholding by AFMA officers from AFP officers of information which it would have been the AFP officers' duty to disclose, could well be relevant to the decision I will soon have to make as to whether evidence obtained as a result of the execution of the eight invalid warrants should or should not be admitted on this trial.

25 The first four invalid warrants were issued in December 1993. The other four were issued in June 1994. I do not know to what extent AFMA officers, as at those times, had information or suspicions concerning the invalidity of the 1991 management plan and the ramifications of its invalidity. Paragraph 11 of that plan contained a formula for the allocation of fishing quotas that was so unreasonable that the paragraph was void. O'Loughlin J held that on 28 July 1992 in Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 351; (1992) 37 FCR 463. That judgment was affirmed by the Full Court of the Federal Court on 19 February 1993 in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381. A number of fishermen were prosecuted in relation to having taken gemfish during 1992 in the area of the "South East Fishery". The charges were laid under the 1952 Act. On an application to the Federal Court arising out of that prosecution, Einfeld J held on 31 May 1994 that the prosecutions were not maintainable since, (inter alia), the licence conditions that required compliance with quotas determined under the invalid method of allocation made the relevant licences invalid: Gray v Coleman (unreported, 31 May 1994, Butterworths Unreported Cases BC9405906). It seems likely that the arguments that succeeded in that case would have been made known to AFMA officers long before Einfeld J delivered his reserved judgment. It may be that AFMA officers had even received advice as to whether the invalid provisions of the 1991 plan invalidated the whole plan, not being severable. The Full Court of the Federal Court ultimately held that to be so on 23 December 1994 in Coleman v Gray (1994) 55 FCR 412. One consequence of fishing licences purportedly issued under the 1952 Act being void was that the transitional provisions in the Fisheries Legislation (Consequential Provisions) Act, s6, did not operate to preserve the operation of the 1952 Act after 3 February 1992.

26 If, when the warrants were sought, AFMA officers had understood or suspected any of these consequences of par11 of the management plan being void, they should have told the AFP officers who applied for the warrants, and the AFP officers should have told the issuing magistrates. Any non-disclosure of such information could well be relevant to the exercise of my discretion as to the exclusion of evidence. When I first dealt with an application to strike out these subpoenas, I had no reason to think that the documents sought by them might reveal anything less reprehensible than a failure to understand fully the very technical legal matters that I have referred to. Similarly, I had no reason to think that the applicants might not have disclosed to the issuing magistrates the facts that AFMA had obtained returns as to orange roughy catches by insisting on their submission by persons who had no obligation to submit them. In the light of the evidence on the Basha inquiry that I have referred to, I now think that there is some chance - probably not a strong one - that the documents sought will materially assist the defence in relation to the forthcoming submissions as to the exclusion of evidence. In the light of the comments of Gibbs CJ in Alister v R (1984) 154 CLR 404 at 414 - 415, I do not think there needs to be a strong chance that a document or group of documents will materially assist the defence in order for a legitimate forensic purpose for access thereto to be demonstrated. That case concerned a report which an important Crown witness had provided to ASIO, apparently implicating the accused. Gibbs CJ took the view that it was "on the cards" that the report would materially assist the defence, who would be able to test the evidence of the witness by comparing it with the report. As I saw it when I gave my ruling on this application, the chances of the documents sought providing the defence with some evidence that could be used in relation to the exercise of my exclusionary discretion, or assisting the defence with a line of enquiry relevant to the exercise of those discretions, would be no less likely than the chances of the report to ASIO materially assisting the defence in Alister. I therefore decided not to set aside either of the two subpoenas.