Supreme Court of Tasmania|2001-05-04|Before: Blow J

R v Turner & Ors (No 4) [2001] TASSC 51 (4 May 2001)

CITATION: R v Turner & Ors (No 4) [2001] TASSC 51

HEARING DATES: 26 - 30 March, 26, 27 April 2001

Criminal Law - Particular offences - Offences against the Government - Other offences - Conspiracy to defraud Commonwealth or public authority under Commonwealth - Deflection of public officers from public duty.

Crimes Act 1914 (Cth), s86A.

Welham v Director of Public Prosecutions [1961] AC 103, followed.

Board of Trade v Owen [1957] AC 602; Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819; R v Terry [1984] AC 374; R v Horsington [1983] 2 NSWLR 72; Connor v Sankey [1976] 2 NSWLR 570; Peters v R [1998] HCA 7; (1998) 192 CLR 493; Spies v R (2000) 74 ALJR 1263; R v Howes [1971] 2 SASR 293; Kastratovic v R (1985) 42 SASR 59; Simonidis v R (1983) 8 A Crim R 313; Barker v R [1994] FCA 1577; (1994) 54 FCR 451, referred to.

Primary Industry - Fish - Licences - Fishing Licence - Void or voidable - Void Management Plan.

Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 351; (1992) 37 FCR 463; Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381; Coleman v Gray (1994) 55 FCR 412, referred to.

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

Judgment Number: [2001] TASSC 51

1 The five accused have been jointly charged with a single count of conspiracy to defraud the Commonwealth and the Australian Fisheries Management Authority ("AFMA"), an authority under the Commonwealth, contrary to the Crimes Act 1914 (Cth), s86A. Although it is not envisaged that a jury will be empanelled until later this year, the accused were all called upon to plead on 26 March 2001, with a view to preliminary matters being determined pursuant to the Criminal Code ("the Code"), s361A. Each of them both pleaded not guilty and demurred to the indictment. Such a course is permitted by the Code, s353(c). Each demurrer was on the ground that the indictment did not in substance disclose any crime. I subsequently heard submissions as to the demurrers, and reserved my decision as to them.

2 I was advised that the Crown proposed, or at least contemplated, tendering documents seized pursuant to each of 19 search warrants, and that it was contended on behalf of the accused that 18 of those warrants were invalid and the other one invalidly amended, and that the documents seized pursuant to them should, in the exercise of the Court's discretion relating to illegally obtained evidence, not be received as exhibits on the trial. I decided to determine the question whether each of the warrants was invalidly issued or amended in accordance with the Code, s361A. The challenge to the warrant said to have been invalidly amended, which purports to have been issued on 22 September 1998 pursuant to the Crimes Act, s3E, was abandoned, but I received submissions in relation to the other 18 warrants. Some exhibits were tendered on the voir dire, and I was informed of a number of agreed facts, but no oral evidence was given on the voir dire.

3 The indictment was amended before the accused were called upon to plead. As amended, it reads as follows:

"The Director of Public Prosecutions of the Commonwealth of Australia on behalf of Her Majesty, charges Phillip Bruce Turner, Mervyn Robin Lee, Cornelius Marinus Jansen, Daren Te Ariki Charles Coulston and Antonio Tedesco with -

Conspiracy to defraud the Commonwealth contrary to Section 86A of the Crimes Act 1914 (C'wth)

Phillip Bruce Turner, Mervyn Robin Lee, Cornelius Marinus Jansen, Daren Te Ariki Charles Coulston and Antonio Tedesco at Hobart in Tasmania, Port Lincoln in South Australia and divers other places between on or about 1 December 1991 and on or about 31 December 1993 conspired together to defraud the Commonwealth and the Australian Fisheries Management Authority, an authority under the Commonwealth, by dishonestly agreeing to cause and permit false returns to be submitted to the Australian Fisheries Management Authority as to the quantity of orange roughy taken in the Australian Fishing Zone in 1992 and 1993."

4 The Crimes Act, s86A, was enacted by the Statute Law (Miscellaneous Provisions) Act (No 2) 1984 (Cth) and repealed by the Crimes Amendment Act 1995 (Cth). At all material times, s86A provided as follows:

"A person who conspires with another person to defraud the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence."

5 Orange roughy, being fish that live in the ocean, are ferae naturae, or wild by nature. The Commonwealth does not own them, and has never owned them. Thus acts of the sort alleged in the indictment to have been the object of the alleged conspiracy, namely causing and permitting false returns to be submitted to AFMA as to the quantity of orange roughy taken in the Australian Fishing Zone in 1992 and 1993, if carried out, could not have resulted in the Commonwealth or AFMA being deprived of any property, nor in the economic interests of either of them being imperilled. The demurrers were based upon the contention that the potential of economic loss to the Commonwealth or, I take it, a public authority under the Commonwealth, was an essential ingredient of the crime of conspiracy to defraud created by s86A. However, the Crown contends that this is not so; that a crime contrary to s86A was committed if two or more persons conspired by dishonestly agreeing to cause and permit false returns to be submitted to AFMA as to quantities of orange roughy that had been taken, knowing that public officers were likely to be deflected from the performance of their public duties as a result; and that, on that basis, the indictment in substance discloses a crime.

6 There are a number of English cases which deal with the proposition that fraud can be constituted by the deflection of a public officer from carrying out his or her public duty. In Board of Trade v Owen [1957] AC 602, the accused had been charged at common law with conspiracy to defraud. It was alleged that they had conspired to defraud a department of the Federal Republic of Germany by causing it to grant export licences by fraudulently representing that certain metals were to be exported to Ireland, when in fact they were to be exported to communist countries. Lord Tucker, with whose reasons the other members of the House agreed, said the following in relation to the alleged conspiracy at 622:

"If, however, a conspiracy of this nature is aptly included in the wide category of conspiracies known as conspiracies to cheat and defraud and if it is necessary to aver and prove that the acts designed to be done or the objects to be achieved will result in some person acting to his detriment, I feel little doubt that a government department so acts if it issues a licence which enables something to be done which the department is charged with the duty to prevent."

Those comments were obiter, since the House of Lords held that the convictions had been rightly quashed for reasons that are of no present significance.

7 In Welham v Director of Public Prosecutions [1961] AC 103, the appellant was the sales manager of a company that sold cars. He purportedly witnessed a number of forged hire-purchase agreements for the purpose of circumventing credit restrictions which prevented finance companies from lending money, and of also circumventing provisions in the companies' memoranda and articles which prohibited them from acting as moneylenders. He was charged with uttering forged documents, contrary to a statutory provision. His conduct contravened the section only if his acts were "committed with intent to defraud". He claimed at his trial that he had no intention to defraud the finance companies, but that the purpose of the forged hire-purchase agreements was to make it appear that those companies were advancing money in a permissible way, and that he uttered the forged documents to mislead the relevant authority, the Board of Trade, in case its officers inspected the records to see that the credit restrictions were being observed. It was the officers' duty to prevent the contravention of those restrictions. The jury were directed that this was a sufficient intention to defraud. The appellant was convicted. He appealed on the ground that there could be no intention to defraud without an intention to cause some economic loss to the person deceived. The House of Lords dismissed his appeal, taking a wider view of the meaning of the word "defraud".

"Murray's New English Dictionary instances such usages as defrauding a man of his due praise or his hopes. Rudyard Kipling in the First World War wrote of our 'angry and defrauded young.' There is nothing in any of this that suggests that to defraud is in ordinary speech confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss.

Has the law ever so confined it? In my opinion there is no warrant for saying that it has. What it has looked for in considering the effect of cheating upon another person and so in defining the criminal intent is the prejudice of that person: what Blackstone (Commentaries, 18th ed, vol 4, at p 247) called 'to the prejudice of another man's right.' East, Pleas of the Crown (1803), vol 2, at pp 852, 854, makes the same point in the chapter on Forgery: 'in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it.'

Of course, as I have said, in ninety-nine cases out of a hundred the intent to deceive one person to his prejudice merely connotes the deceiver's intention of obtaining an advantage for himself by inflicting a corresponding loss upon the person deceived. In all such cases the economic explanation is sufficient. But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived. If there could be no intent to defraud in the eyes of the law without an intent to inflict a pecuniary or economic injury, such cases as these could not have been punished as forgeries at common law, in which an intent to defraud is an essential element of the offence, yet I am satisfied that they were regularly so treated."

9 His Lordship went on to discuss R v Harris (1833) 1 Mood CC 393, which involved the forgery of an order for the discharge of a prisoner; R v Sharman [1854] EngR 42; (1854) 1 Dears CC 285, which involved the use of forged references to obtain appointment as a schoolmaster; R v Moah (1858) Cox CC 503, which involved the use of a forged letter of recommendation to obtain appointment as a police constable, and R v Toshack (1849) 4 Cox CC 38, which involved the use by a seaman of a forged testimonial to obtain a master's certificate.

"... it appears that Welham on his own evidence had an intent to defraud, because he uttered the hire-purchase documents for the purpose of fraud and deceit. He intended to practise a fraud on whomsoever might be called upon to investigate the loans made by the finance companies to the motor dealers. Such a person might be prejudiced in his investigation by the fraud. That is enough to show an intent to defraud."

11 In my view it is significant that the "intent to defraud" in Welham did not involve any intention to corrupt any public officer, and involved only the possibility of prejudicing an investigation.

12 Welham did not involve a conspiracy charge, but the principles discussed in that case were discussed by the House of Lords in Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819, which concerned a charge of conspiracy to defraud at common law. Viscount Dilhorne, with whose reasons all other members of the House agreed, said the following at 839:

"In Welham v Director of Public Prosecutions [1961] AC 103, 124 Lord Radcliffe referred to a special line of cases where the person deceived is a person holding public office or a public authority and where the person deceived was not caused any pecuniary or economic loss. Forgery whereby the deceit has been accomplished, had, he pointed out, been in a number of cases treated as having been done with intent to defraud despite the absence of pecuniary or economic loss.

In this case it is not necessary to decide that a conspiracy to defraud may exist even though its object was not to secure a financial advantage by inflicting an economic loss on the person at whom the conspiracy was directed. But for myself I see no reason why what was said by Lord Radcliffe in relation to forgery should not equally apply in relation to conspiracy to defraud."

13 Scott involved the bribing by the accused of employees of cinema owners. They provided him with films so he could copy them and let the copies out on hire. The comments I have quoted were obiter, since it was conceded that the copying of the films had inflicted more than nominal damage to the goodwill of the owners of their copyright and distribution rights.

14 In the same case, Lord Diplock set out three propositions which he regarded as having been established by the authorities. The third of them (at 841) reads as follows:

"Where the intended victim of a 'conspiracy to defraud' is a person performing public duties as distinct from a private individual it is sufficient if the purpose is to cause him to act contrary to his public duty, and the intended means of achieving this purpose are dishonest. The purpose need not involve causing economic loss to anyone."

15 Welham was also the subject of dicta in Director of Public Prosecutions v Withers [1975] AC 842. That case involved charges of conspiracy to effect a public mischief. The House of Lords held that no such generalised offence was known to the law. The defendants had conducted an investigation agency, and had provided their clients with reports as to third parties. They had obtained information from government departments, local authorities, and other sources by pretending to be enquiring in an official capacity, and had then passed on confidential information received from public officers. Viscount Dilhorne commented at 860 that the case "might have proceeded on the basis that the conspiracy charged in each count was conspiracy to defraud", but expressed no conclusion as to whether the accused could properly have been convicted on that basis. Lord Diplock made similar comments, again without reaching a conclusion, at 862. At 873, Lord Simon of Glaisdale commented that "the law seems to have evolved a class of conspiracy which consists of agreements to procure (at least dishonestly) that a person charged with a duty to the public acts in derogation of that duty".

16 The House of Lords considered the meaning of the word "fraudulently" in R v Terry [1984] AC 374. The respondent in that case had been charged with fraudulently using a vehicle excise licence contrary to a statutory provision. He had hired a car, returned it without its licence disc, driven his own car with the hired car's licence disc displayed on the dashboard, and been intercepted by a police officer. His defence was that the licence disc had fallen off the hired car, that he was about to return it, that he had applied for a new licence for his own car, and that he was not using the licence from the hired car in an attempt to avoid paying the licence fee on his own car, as distinct from an attempt to avoid being charged with using his own car without its licence disc being exhibited. The critical issue was whether an attempt to avoid paying the licence fee was an essential element of the offence of using the licence disc fraudulently. The House of Lords held that it was not. Lord Fraser of Tullybelton, with whose reasons the other members of the House agreed, concluded at 381 that there was nothing in the relevant section to exclude the application of the general rule stated in Welham. His Lordship also cited with approval the third proposition formulated by Lord Diplock in Scott, which I have quoted above.

17 It was submitted on behalf of the accused that, although deflecting a public officer from the performance of his or her public duty would be treated as fraud for the purposes of the common law in England, there is a lack of Australian authority to that effect, and that the word "defraud" in s86A did not refer to any such deflection. However, there is a substantial body of Australian authority to the effect that the deflection of a public officer from the performance of his or her public duty amounts to fraud.

18 In R v Horsington [1983] 2 NSWLR 72, a builder and a real estate agent had been convicted of two counts of conspiracy to defraud contrary to the common law. The first count alleged that they had conspired to cheat and defraud the Registrar of Co-operative Societies and a building society. The Crown case was that they had built and sold 21 houses, falsely representing that the sale price of each was below the maximum figure for the making available of low-interest loans, under a government-funded scheme, through the building society. Glass JA, with whom Street CJ and Lusher J agreed, considered Welham, Scott and Withers, and concluded that, as there was no authority in the High Court that contradicted the law then recently laid down in England, they should be followed. In analysing the effect of those decisions, he said at 75:

"A conspiracy to defraud may also be made out on proof of an agreement by fraudulent means to cause a public official to act contrary to his public duty even though no question of economic loss is involved."

19 In Connor v Sankey [1976] 2 NSWLR 570, the plaintiffs, a former Minister and a former Prime Minister, had been charged with conspiring to deceive the Governor-General into committing a breach of duty by approving an authority to borrow in contravention of a Commonwealth statute. The applications were heard at first instance by the New South Wales Court of Appeal, which declined to grant relief. At 597 - 599 Street CJ reviewed the House of Lords cases and concluded that it was not reasonably open to dispute that a conspiracy as alleged fell within the category of a conspiracy to deceive a public officer in the execution of his duty. His Honour concluded that "the informations and summonses alleging a common law conspiracy are not so framed as to propound offences not congnizable at law". The other members of the Court did not deal with that point.

20 In Peters v R [1998] HCA 7; (1998) 192 CLR 493, a case which concerned a conspiracy to defraud the Commonwealth Commissioner of Taxation by evading the payment of income tax, McHugh J (with whose reasons Gummow J agreed), said the following at 525:

Although most cases of conspiracy to defraud involve an agreement to use dishonest means which has the effect of inflicting economic loss on a third party, the infliction of such loss is not an essential element of the offence. It is sufficient that the conspirators intended to obtain some advantage for themselves by putting another person's property at risk (R v Sinclair [1968] 1 WLR 1246; [1968] 3 All ER 241; (1968) 52 Cr App R 618; R v Allsop (1976) 64 Cr App R 29; Wai Yu-Tsang v The Queen [1992] 1 AC 269) or depriving another person of a lawful opportunity to obtain or protect property (R v Kastratovic (1985) 42 SASR 59 at 65). It is also well established that a conspiracy to defraud may be established if the defendants agree to deceive a person into acting or refraining from acting contrary to his or her public duty (Board of Trade v Owen [1957] AC 602; R v Terry [1984] AC 374; Withers [1975] AC 842 and cf R v Bassey (1931) 22 Cr App R 160)."

21 Mr Abbott QC submitted that in Peters the High Court was divided as to whether the deflection of a public officer from the performance of his or her public duty amounted to fraud. He relied on two passages in the judgment of Toohey and Gaudron JJ. The first was a comment at 506 - 507 that "fraud involves an element of dishonesty over and above the use of dishonest means". The second was a passage at 509 where their Honours said that the offence of conspiracy to defraud "involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others". He argued to the effect that their Honours thereby defined the offence of conspiracy to defraud in such a way as to exclude cases of deflection from public duty. But I do not think any such exclusion can be read into the words of the judgment. Their Honours did not refer at all to the question whether fraud can be constituted by a deflection from the performance of a public duty. In the passages referred to, they were making the point that, contrary to a comment made in a publication by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, fraud involves not only dishonest means, but also an objective that is dishonest by ordinary standards - an objective described by their Honours as "a situation prejudicing or imperilling existing legal rights or interests of others". I think those words should be treated as referring (inter alia) to the interest that a public officer has in the proper discharge of his or her public duty. Alternatively, their Honours could be regarded as having overlooked the species of fraud constituted by the deflection of a public officer from the performance of his or her public duty, which that case was not concerned with, so that what they said cannot be taken as authority for the proposition that that does not constitute fraud.

22 In Peters, McHugh J made a second reference to the performance of a public duty in the following passage, at 529:

"In most cases of conspiracy to defraud, to prove dishonest means the Crown will have to establish that the defendants intended to prejudice another person's right or interest or performance of public duty by:

* making or taking advantage of representations or promises which they knew were false or would not be carried out;

* concealing facts which they had a duty to disclose; or

* engaging in conduct which they had no right to engage in."

23 That passage was cited with approval by Gaudron, McHugh, Gummow and Hayne JJ in Spies v R (2000) 74 ALJR 1263 at 1278 - 1279, par80. Whilst that case had nothing to do with the deflection of a public officer from the performance of a public duty, it is significant that so recently four judges of the High Court have unreservedly adopted the passage quoted as accurately stating the law.

24 The meaning of the phrase "with intent to defraud" in the Code, s264, was considered by Crawford J in R v Fitzgerald [1980] Tas R 157 at 161 where his Honour said:

"As to 'defraud', it is not necessary that there should be any intent to cause financial loss or detriment. And I hold, as was submitted by Mr Shott, that it is sufficient if the intent was that anyone was to be hindered or prevented in taking action by the fraud, if there was one."

25 Scott and Welham were considered by the Court of Criminal Appeal in Taylor v R [1997] TASSC 5; (1997) 6 Tas R 310. In that case, the appellant had been convicted on three counts of defrauding the Commonwealth contrary to the Crimes Act, s29D. The Crown case was that she had obtained payments of a sole parent pension by means of deception. The Court of Criminal Appeal held that it had not been necessary for the Crown to prove that the appellant was not entitled to the pension in any event, nor that the Commonwealth had suffered economic loss by reason of her conduct. However, none of the three judgments in that case was expressly based on the proposition that the deflection of a public officer from the performance of a public duty amounts to fraud.

26 In R v Howes [1971] 2 SASR 293, the accused was charged with four counts of conspiracy to effect a public mischief, contrary to the common law. The Crown case was that he had taken part in a conspiracy to induce the Public Examinations Board of South Australia to believe, falsely, that he had obtained marks at matriculation examinations that fulfilled the requirements for matriculation to certain universities. He demurred. After reviewing the authorities, particularly Board of Trade v Owen and Welham, Wells J said, overruling the demurrer, at 303:

"In my opinion, those two cases are powerful, modern authorities which warrant the conclusion that the word 'fraud', and its derivatives 'defraud' and 'fraudulent', may properly, in the context of the criminal law, in general, and of criminal conspiracy, in particular, be applied to the disadvantage suffered by a public official or person charged with the performance of a public duty who has been induced, by some form of deception practised upon him - whether by words, documents, impersonation or other plainly dishonest conduct, trickery or cheating - to act contrary to his duty. 'Intent to defraud' should be construed accordingly."

27 In Kastratovic v R (1985) 42 SASR 59, which involved a charge of demanding money by virtue of a forged guarantee with intent to defraud, King CJ (presiding in the Court of Criminal Appeal) said the following at 62:

"To defraud must involve something more than the mere inducing of a course of action by dishonest means: Welham v Director of Public Prosecutions per Lord Radcliffe at 127. In offences constituted by obtaining money or property with intent to defraud, that something more may be found in the mere parting by the victim of the fraud, with money or property which he is entitled to retain and which he would not have parted with but for the use of the dishonest means: Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576. In other cases, the defrauding may consist of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done."

28 In Simonidis v R (1983) 8 A Crim R 313, the appellant, a medical practitioner, had been convicted under the Criminal Code 1899 (Qld) of two counts of conspiracy to defraud the Workers' Compensation Board by providing people he had not seen or examined with false medical certificates. The only ground of appeal was that the two counts of conspiracy had been improperly joined since they both charged the same conspiracy to defraud. In the course of his judgment, D M Campbell J, with whom Douglas and Sheahan JJ concurred, referred to Scott and cited Lord Diplock's third proposition, which I have set out in par14 above, as defining what had to be proved to establish a conspiracy to defraud a public body.

29 In Barker v R [1994] FCA 1577; (1994) 54 FCR 451 at 462, the Full Court of the Federal Court had occasion to consider, in connection with the Proceeds of Crime Act 1987 (Cth), what constituted "public fraud offences" contrary to the Crimes Act, ss29D and 86A. The case involved charges of defrauding the Commonwealth contrary to s29D by deceiving the Australian Taxation Office in various respects. It is authority for the proposition that a defrauding can be constituted by a deceit or concealment that has caused the imperilment of the economic interests of the person deceived, or of that person's principal, including the imperilment of the Commonwealth's interests to secure payment of income tax by a taxpayer. In the joint judgment of Jenkinson and O'Loughlin JJ at 462, their Honours cited Welham and Scott as authority for the following proposition:

"The Commonwealth may be defrauded in ways that involve no economic prejudice, nor any intention to cause economic prejudice"

30 Clearly there is a substantial and highly authoritative body of Australian case law that supports the proposition that the deflection of a public officer from the performance of his or her public duty is a species of fraud. As far as I am aware, there is no reported Australian case that says the opposite.

31 I do not see any reason to distinguish any of the cases that I have referred to on the basis that they relate to the nature of fraud in other contexts, such as fraud for the purposes of forgery, common law conspiracies to defraud, and so forth. There is nothing in the authorities to justify a different approach being taken in relation to the meaning of "defraud" in s86A, nor is there any logical reason for a different approach to be taken.

32 Mr Abbott QC submitted, as I understood him, that the House of Lords had in effect created a new species of fraud concerned with deflection from the performance of a public duty as a side-effect of overruling the authorities that there was a generalised offence of conspiring to effect a public mischief. I disagree. It is true that their Lordships held in Withers that there was no such generalised offence, but the other House of Lords authorities as to the existence of this type of fraud have nothing to do with the non-existence of such a crime.

33 Mr Kourakis QC submitted that the offence of conspiring to defraud the Commonwealth or a public authority under the Commonwealth, which was created by s86A, was separate and distinct from the four different classes of conspiracy prohibited by s86(1). At all material times that subsection provided as follows:

(a) to commit an offence against a law of the Commonwealth;

(b) to prevent or defeat the execution or enforcement of a law of the Commonwealth;

(d) to effect a lawful purpose by means that are unlawful under a law of the Commonwealth;

34 As I have said, s86A was inserted into the Crimes Act in 1984. Prior to the 1984 amendment, it was an indictable offence contrary to s86(1)(e) to conspire to defraud the Commonwealth or a public authority under the Commonwealth. In fact, s86(1)(e) was inserted by the Crimes Act 1915. Originally it related only to defrauding the Commonwealth, but it was amended in 1960 so as also to prohibit any conspiracy to defraud a public authority under the Commonwealth. Mr Kourakis QC submitted that Parliament did not intend any overlapping in ss86(1) and 86A, but that there had been a careful attempt to identify and differentiate between various conspiracies thought to be known to the common law when the relevant provisions were enacted. He submitted that s86(1)(b), which prohibits a conspiracy "to prevent or defeat the execution or enforcement of a law of the Commonwealth" was applicable to the sort of conspiracy with which the accused have been charged, and submitted that the former s86(1)(e), and s86A as its successor, therefore did not prohibit the sort of conspiracy alleged against the accused.

35 However, I do not think that the wording of s86(1) and the repealed s86(1)(e) supports the submission made by Mr Kourakis QC. It is not hard to think of examples of conspiracies that might fall within more than one of the prohibitions in question. For example, a conspiracy to import prohibited imports into Australia would amount to a conspiracy to commit an offence against a law of the Commonwealth, namely the Customs Act 1901, s50, contrary to s86(1)(a), as well as constituting a conspiracy to prevent the enforcement of that law of the Commonwealth, contrary to s86(1)(b), and would also amount to a conspiracy to effect a purpose that is unlawful under that law of the Commonwealth, contrary to s86(1)(c). If the relevant provisions were interpreted as Mr Kourakis QC suggests they should be, it would be necessary, before each conspiracy charge was laid, to make a value judgment as to which of the five statutory formulations of conspiratorial purposes best described the alleged conspiracy, on the basis of the facts then known to the prosecuting authorities. If the accused were charged pursuant to only one paragraph of s86(1), it would be necessary for the Crown to establish beyond a reasonable doubt that the words of that paragraph, rather than one of the others, best described the alleged conspirators' objective. Such a result would be absurd, and certainly would not promote the object or purpose of the Crimes Act. I think it is clear that Parliament did not intend the five different types of conspiracy now described in ss86(1) and 86A to be mutually exclusive, and that the words of those provisions should be interpreted in such a way that some of them will sometimes overlap.

36 I do not think the history of s86A and its antecedents helps the accused in any way. As the 19th Century forgery cases considered by Lord Radlciffe in Welham and referred to in par9 above make clear, the deflection of a public officer from the performance of a public duty has long been regarded as a type of fraud. I think it must follow that, when Parliament enacted s86(1)(e), the predecessor of s86A, in 1915, it intended that provision to apply to a conspiracy to commit that type of fraud.

37 Mr Abbott QC submitted that, in ordinary speech, the word "fraud" would not be regarded as including the deflection of a public officer from the performance of his or her public duty. That might well be so. It is true that, as a general rule, the words of a statute should be interpreted in accordance with their ordinary, everyday meaning. However there is another well established principle of statutory interpretation, which was stated by O'Connor J in Attorney-General (NSW) v Brewery Employés Union of New South Wales [1908] HCA 94; (1908) 6 CLR 469 at 531 as follows:

"Where words have been used which have acquired a legal meaning it will be taken, prima facie, that the legislature has intended to use them with that meaning unless a contrary intention clearly appears from the context."

The very nature of that rule of interpretation is that, if it is applicable, and if it is in conflict with the rule requiring words to be given their ordinary, everyday meaning, it will prevail. If, as submitted by Mr Abbott QC, the ordinary, everyday meaning of the word "defraud" does not include the deflection of a public officer from the performance of his or her public duty, then I think this is a situation where that word had acquired a legal meaning that includes such deflection, and there is nothing in the statute to suggest that the legislature intended to use the word otherwise than with its legal meaning. I therefore reject the submission of Mr Abbott QC.

Search warrants - Fisheries Act 1952 (Cth)

39 Eight of the search warrants whose validity was challenged were purportedly issued pursuant to the Fisheries Act 1952 (Cth) ("the 1952 Act"), s10. Three of them were issued on 14 December 1993, one the following day, and four on 8 June 1994. However, all of the 1952 Act, except PtIVA (whose provisions are completely irrelevant to this case), was repealed by the Fisheries Legislation (Consequential Provisions) Act 1991 (Cth) ("the FLCP Act"), s3(2), with effect from 3 February 1992.

40 Counsel for the accused submitted that these eight warrants were invalid, and thus that anything seized pursuant to them was illegally obtained, since the legislation relied upon as a basis for issuing them had been repealed prior to their issue. The Crown contends that, despite the repeal of the relevant provisions in the 1952 Act, those provisions continued in force for limited purposes, and the magistrates who issued the eight warrants had jurisdiction to do so, pursuant to the FLCP Act, s6(1), which provided as follows:

"(1) Despite the repeal of the Fisheries Act 1952, other than Part IVA, by this Act, a licence granted to a person under section 9 of that Act that was in force immediately before the commencement of this section continues in force after that commencement until its date of expiry, or until it is surrendered or cancelled, as if the Fisheries Act 1952, other than Part IVA, had not been repealed and that Act and instruments made or determined under that Act (including regulations, Proclamations, orders, plans of management or notices) as in force immediately before the commencement of this section continue to apply in relation to the licence, the holder of the licence or a person acting on behalf of the holder of the licence to the extent that they are capable of so applying."

41 Prior to the commencement of the Fisheries Management Act 1991 (Cth) ("the 1991 Act"), which also commenced on 3 February 1992, the 1952 Act was the legislative basis for the Commonwealth's regulatory activity in relation to fisheries. Under the 1952 Act, s7B, the Minister had the power to make management plans, being statutory instruments of a legislative nature regulating particular fisheries. On 9 December 1991, the Minister purported to make a Plan named the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the Plan"). The Plan provided for a mechanism whereby a "total allowable catch" for each of a number of species, including orange roughy, was to be fixed for the fishery for each calendar year, and for a mechanism for the total allowable catch to be divided amongst the boats permitted to fish for that species in the fishery. Each boat was to be allocated a number of transferable quota units. Catches of orange roughy and other species referred to in the Plan were to be limited accordingly. Paragraph 11 of the Plan set out a mathematical formula pursuant to which the quantity of each relevant species for each relevant boat was to be determined.

42 On 9 December 1991, the Minister made a notice, purportedly pursuant to the 1952 Act, s8, prohibiting the taking of fish by trawling in the South East Fishery, but exempting from that prohibition boats which had had units assigned to them under the Plan in respect of a species, and which had not been used to take a total weight of that species exceeding the quota in relation to the units. On 19 December 1991, the Fisheries Regulations, which were in force under the 1952 Act, were amended to include a new reg15A which required receivers who received species from the South East Fishery for processing for trade, or for sale, to submit daily returns in a form approved by the Minister. The Minister published forms of log-books for the purposes of the Fisheries Regulations, reg16, with the result that masters of boats licensed to take fish of the relevant species from the South East Fishery were required by reg18 to cause information relating to the taking, sale and disposal of the relevant fish to be entered and kept in such log-books.

43 Each of the eight warrants purportedly issued pursuant to the 1952 Act was worded so as to limit the search thereby authorised to things as to which there were reasonable grounds for believing that the same would afford evidence as to the commission of certain listed offences against the laws of the Commonwealth. In each case, the warrant listed a series of offences, or supposed offences, contrary to the 1952 Act, s14(2)(ba), which related to false and misleading information, and a series of offences of conspiring to commit offences against s14(2)(ba), contrary to the Crimes Act, s86(1)(a). No offences against any other laws of the Commonwealth were relied upon. In all eight warrants, each of the offences or supposed offences listed was specified to have occurred on dates after 3 February 1992, or during the period commencing after 3 February 1992.

44 In Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 351; (1992) 37 FCR 463, O'Loughlin J, in proceedings pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), declared that par11 of the Plan was void. He did so on the basis that the formula in par11 was statistically flawed, and led to such arbitrary and capricious results that it was outside of the power of the Minister, as the decision-maker, to adopt it. As Davies J observed in Coleman v Gray (1994) 55 FCR 412 at 415, the order of O'Loughlin J had the effect of declaring par11 of the Plan to be void ab initio, that being the ordinary understanding if such an order is not otherwise qualified. The order was made on 28 July 1992. The Minister appealed, but on 19 February 1993, the Full Court of the Federal Court dismissed his appeal: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381.

45 The consequences of par11 of the Plan being void were considered by Einfeld J in Gray v Coleman (unreported, 31 May 1994, Butterworths Unreported Cases BC9405906). That case concerned a number of applications for declaratory relief made by persons who had been charged with offences contrary to the 1952 Act, s13(1), including using a boat for taking fish in an area of proclaimed waters without a licence, being the holder of a licence and contravening or failing to comply with a condition of it, being the holder of a licence in respect of a boat and causing a contravention or failure to comply with a condition of it, being a person acting on behalf of the holder of a licence in respect of a boat and contravening or failing to comply with a condition of it, and doing an act prohibited by a notice for the time being in force under the 1952 Act, s8. Einfeld J delivered reasons for judgment on 31 May 1994, and on 5 September 1994 made declarations and orders to give effect to those reasons. He held invalid par14 of the Plan, which provided for the allocation of units to boats. He held invalid licence conditions which required fishing operators to obey quotas determined under the invalid method of allocation. He held the exemption to the Minister's notice of 9 December 1991 invalid since it was expressed to be referable to pars11 and 14 of the Plan. He declared that the Minister's notice was void. He declared that the prosecutions were not maintainable.

46 The orders of Einfeld J were upheld on appeal, subject to an irrelevant exception in relation to an operator who had failed to renew a licence: Coleman v Gray (supra). At 436 - 437, Gummow J, with whom Davies J agreed, held that the licences were wholly invalid, their invalid conditions not being severable. The Full Court gave judgment in the relevant appeals on 23 December 1994.

47 Before me, no counsel sought to take any point as to the Federal Court decisions concerning the Plan and related instruments binding only the parties to those proceedings. The argument in relation to the search warrants proceeded on the basis that pars11 and 14 of the Plan, the notice, and the licence, had rightly been declared void or held invalid, and that the relevant facts set out in the reported Federal Court judgments were common ground.

48 The licences whose conditions were held invalid by Einfeld J appear to have been different instruments from the purported licences on which the Crown relies for the purpose of its submissions concerning the FLCP Act, s6(1), but the licences now relied on were no doubt invalid for the same reasons as those held invalid by Einfeld J.

49 In those circumstances, I think it follows that there was no scope for the operation of the FLCP Act, s6(1), in relation to any purported licence issued for the taking of orange roughy that had been issued for the purposes of the Plan. The subsection has two limbs. The first limb, when and if it operated, continued in force licences granted under the 1952 Act, s9, that were in force immediately before 3 February 1992. None of the relevant licences were in force because they were invalid and void. The second limb of s6(1), when and if it operated, continued the operation of instruments made or determined under the 1952 Act, but only to the extent that they continued "to apply in relation to the licence, the holder of the licence or a person acting on behalf of the holder of the licence to the extent that they are capable of so applying" [my emphasis]. It can readily be seen that this second limb of s6(1) applied only when there was a nexus between an instrument and a licence in force immediately before 3 February 1992. As with the first limb of the subsection, the second limb had no operation where a purported licence was void or invalid.

50 Mr Read, for the Crown, relied on the fact that the eight warrants in question had all been issued prior to any licences being declared invalid or void. He submitted that, despite the defect in the Plan and the consequences in relation to the validity of related instruments, the issue and execution of the eight warrants were matters that were "past and closed", in the sense that their propriety could not be attacked in these proceedings.

51 The term "past and closed" has been used to describe the status of things done pursuant to legislation that has subsequently been repealed. In Surtees v Ellison [1829] EngR 594; (1829) 9 B & C 750, 109 ER 278, Lord Tenterden CJ said (at 9 B & C 752, 109 ER 279):

"It has long been established, that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed."

In that case, the Court of King's Bench held that trading by a bankrupt when repealed legislation was in force, which ceased prior to the repeal, could not be relied upon as the basis of a commission of bankruptcy under a new bankruptcy statute that replaced the repealed one.

52 That case was referred to in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73, which concerned convictions for an offence contrary to regulations which were subsequently disallowed by the Senate. By virtue of the Acts Interpretation Act 1904 (Cth), they "thereupon ceased to have effect". The High Court took the view that the disallowance of the regulations, like the repeal of a statute, did not invalidate anything that had been completed pursuant to them whilst they were in force. Gavan Duffy CJ and Starke J said at 85:

"It is unnecessary, in our view, to determine whether the Regulations so disallowed cease to have effect from the beginning, that is, as if they had never existed, rather than from the point of time when they were disallowed. Assume, however, that they ceased to have effect from the beginning, still the disallowance could not affect transactions that were passed [sic] and closed. (Cf Surtees v Ellison [1829] EngR 594; (1829) 9 B & C 750, 109 ER 278; Barrow v Arnaud [1846] EngR 9; (1846) 8 QB 604; 115 ER 1004.) Here, convictions had taken place, and, if no appeal had been brought, the transaction, undoubtedly, would have been passed [sic] and closed. The question then is whether a right of appeal to this Court, and an appeal brought pursuant to that right, prevent the transaction being treated as passed [sic] and closed. In our opinion they do not, in the present case. 'Appeal' is used in more senses that one: it is a process which may subject (1) the whole matter for rehearing: (2) a question of law only, for review: (3) the facts as well as the law for review, that is, whether the order of the tribunal from which the appeal is brought was right, on the materials which it had before it. Orders nisi to review belong to the third type or description of appeals. Consequently the only question for this Court is whether the convictions or adjudications were, on the materials before the tribunal from which this appeal is brought, in accordance with the law as then existing.

Similar conclusions were reached by Rich J at 87, Dixon J at 105, and Evatt J at 129 - 130.

53 Mr Read also relied on the Full Court's decision in Smith v Brooks [1988] TASSC 43; [1988] Tas R 92. In that case a magistrate had imposed fines in relation to abalone offences in accordance with regulations prescribing mandatory penalties which were later held to be ultra vires. Thereafter, pursuant to the Justices Act 1959, s76A, the magistrate set aside the penalties that he had previously imposed. The Full Court held that no other course had been open to him. There was some discussion about the status that the magistrate's original order, before he set them aside. Green CJ said at 99:

"... the magistrate's orders were valid only in the limited sense that as the validity of the regulations was not challenged in the original hearing they were presumed to be intra vires and the penalties thus appeared to be authorised by law."

"On the materials before him [the magistrate], no challenge having been made to the validity of the regulations, his order was correct. In the absence of challenge he was entitled to presume that the regulations were valid. Aliter if they were challenged ... In my opinion, this foundation is sound. The order was a valid order which would provide a firm authority for the collection of the fines. But it was not thereby rendered immune. It was still subject to whatever challenges the law could provide."

54 Mr Read also relied on the High Court's recent decision in Residual Assco Group Ltd v Spalvins (2000) 74 ALJR 1013, [2000] HCA 33, particularly in relation to passages in the judgment of Kirby J at 1028 - 1030 (pars72, 73 and 79). In those passages his Honour referred to a body of case law that supports the proposition that a judgment or order of a superior court is valid and effective unless and until set aside.

55 But the cases relied upon by Mr Read are all distinguishable. The question here is whether certain licences authorising the taking of orange roughy by trawling in the South East Fishery were in force immediately before 3 February 1992, despite the adoption of the flawed mathematical formula that invalidated the Plan. In short, the question is whether the licences were void or voidable following their issue. If they were void, there was no scope for the FLCP Act, s6(1), to operate, and the provisions in the 1952 Act empowering the magistrates to issue search warrants had not continued in force in relation to the void licences. If the licences were voidable, and not void, the FLCP Act, s6(1), caused them to remain in force, and the relevant provisions of the 1952 Act, including those relating to the issue of search warrants, continued in force in relation to them.

56 The case law concerning judgments and orders of courts having a force of their own despite any lack of jurisdiction are distinguishable, since the magistrates who purported to issue these warrants were not exercising judicial power, but acting as administrative decision-makers as persona designata: Ousley v R (1997) 192 CLR 69 at 84, 102 and 130. One must also distinguish the authorities relating to things validly done pursuant to legislation subsequently repealed or disallowed, including Victorian Stevedoring (supra), since this case concerns decisions and instruments to which legislation that has subsequently been repealed never gave any validity. There is a body of authority to the effect that administrative decisions and actions that are impeachable as a result of the denial of natural justice remain effective unless and until avoided but that, once avoided, they become void ab initio: Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242 per Aickin J at 277; Macksville & District Hospital v Mayze (1987) 10 NSWLR 708. However, those cases are distinguishable because the invalidity of the relevant licences did not result from a denial of natural justice.

57 Their invalidity resulted from the adoption of a mathematical formula that was so unreasonable as to make the Plan one which it was beyond the power of the Minister to make. A management plan under the 1952 Act, s7B was an instrument of a legislative character: Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (supra), at 473. A legislative instrument that is ultra vires is invalid ab initio, regardless of whether any court has held it invalid, and regardless of when it has first been held invalid. In South Australia v The Commonwealth [1942] HCA 14; (1942) 65 CLR 373, Latham CJ said at 408:

"A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally he will feel safer if he has a decision of the court in his favour - but such a decision is not an element which produces invalidity in any law. The law is not valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is invalid ab initio."

58 In my view a Ministerial notice under the 1952 Act, s8, prohibiting fishing for a particular species in a particular area by a particular means also constituted a legislative instrument. It was required by s8(1) to be notified in the Gazette. By s8A, such a notice was required to be tabled in Parliament, and was liable to disallowance. The powers to restrict fishing conferred by s8 were not, in my view, powers to execute a law of the Commonwealth, but involved the delegation by Parliament of legislative authority, so that the Minister had the power to act as a delegate of the Parliament. See Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615 at 636.

59 Although O'Loughlin J based his decision at first instance in Austral Fisheries on the basis that the Plan was an instrument of a legislative character, two of the three judges in the Full Court, Beaumont and Hill JJ, found it unnecessary to decide whether the determination of the Plan was legislative or administrative: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (supra), at 396 - 398. Even if the determination of the Plan was an administrative act, their Honours considered it void ab initio because of the adoption of the unreasonable mathematical formula. It is clear from the Full Court Decision in Coleman v Gray (supra), that the licences relevant to that case were invalid because their validity was dependent on the Plan. It must follow that the licences relevant to this case were invalid for the same reason. As I have said, Davies J observed in Coleman v Gray at 415 that the order of O'Loughlin J had the effect of declaring par11 of the Plan to be void ab initio, that being the ordinary understanding if such an order is not qualified. Einfeld J took the same view in Gray v Coleman (supra), at par46. It was implicit in his reasoning that the licences relevant to that case, or at least the relevant licence conditions, were also invalid ab initio. Otherwise he would not have granted the relief sought by the applicants, who were being prosecuted in conjunction with (inter alia) breaches of licence conditions. His judgment was affirmed by the Full Court without any adverse comment as to par46, which dealt with the "void or voidable" issue. All of this leads inevitably to the conclusion that the "licences" relevant to this case were not voidable as Mr Read's submissions would suggest, but void ab initio.

60 The continued operation of the 1952 Act, s14(2)(ba), after 3 February 1992 was an essential prerequisite to the validity of these eight search warrants. That provision had been repealed, and the FLCP Act, s6, did not continue it in force in relation to any relevant licence. The search warrants thus were based on the commission or possible commission of offences unknown to the law, and were therefore invalid, even if the issuing magistrates had some alternative source of power to issue search warrants.

61 Mr Read sought to rely on the Acts Interpretation Act 1901, s8, which provides as follows:

"Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;

and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."

62 However, at the time of the relevant repeal on 3 February 1992, none of the offences or possible offences referred to in any of the eight warrants could have been committed. They all related to subsequent dates or periods. Thus no relevant right could have accrued or been acquired; no relevant obligation or liability could have been incurred; and there was no scope for the institution, continuation or enforcement of any investigation, legal proceeding, or remedy.

63 For these reasons, I determine that the eight search warrants issued in purported pursuance of the 1952 Act were invalid, and that anything obtained pursuant to any of them was illegally obtained.

64 These eight warrants were attacked on other grounds. In case I am wrong in my conclusions as to the effect of the repeal of the relevant provisions in the 1952 Act, and in case any of the submissions made in relation to these warrants are significant in relation to any future exercise of the discretion to exclude illegally obtained evidence, I will deal briefly with those other grounds.

65 It was submitted that these warrants were bad because the jurisdictional basis for their issue was not stated on the face of them. The provisions in the 1952 Act governing the issue of search warrants were s10(4) and (4A), which read as follows:

(4) Where an officer has reasonable grounds to believe that there is on any land or in any premises any document, equipment or thing that may afford evidence as to the commission of an offence against this Act, the officer may make application to a Justice of the Peace for a warrant authorizing the officer to enter the land or premises for the purpose of ascertaining whether there is on that land or in those premises any such document, equipment or thing.

(4A) If, on application by an officer under sub-section (4), a Justice of the Peace is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, on the land or in the premises to which the application relates, any document, equipment or thing that may afford evidence as to the commission of an offence against this Act, the Justice of the Peace may issue a warrant authorizing the officer, together with any other person named in the warrant, to enter that land or those premises, during such hours of the day or night as the warrant specifies, or, if the warrant so specifies, at any time, and to exercise the powers referred to in sub-paragraphs (1) (ab) (ii) and (iii)."

66 The jurisdictional basis for the issue of the warrant dated 15 December 1993, which was issued in South Australia, was stated in a preamble in the following terms:

"WHEREAS, on application made under sub-section 10(4) of that Act [ie, the 1952 Act] in relation to land or premises referred to in Schedule 1 hereof, I, Frederick Robert Field, a Magistrate and Justice of the Peace, am satisfied by information on oath that the issue of a warrant is reasonably required for the purposes of that Act ...".

67 The other seven warrants were issued by a Tasmanian magistrate. There are some variations as to the addresses and property occupiers referred to in them, but each contained a preamble as to its jurisdictional basis in the following form:

"WHEREAS, on an application made under sub-section 10(4) of that Act [ie, the 1952 Act] in relation to land or premises occupied by and/or used by VICTRAWL PTY LTD and located at Macquarie Wharf No 2, Hunter Street, Hobart Tasmania, I, PETER FREDERICK DIXON, a Magistrate and Justice of the Peace, am satisfied by information on oath that the issue of a warrant is reasonably required for the purposes of that Act ...".

68 It can be seen at once that these preambles gave no indication that either of the issuing magistrates was satisfied that there were reasonable grounds for suspecting that there was, on the land or in the premises to which the application for the warrant related, any document, equipment or thing that might afford evidence as to the commission of an offence against the 1952 Act, despite such satisfaction being a prerequisite to the issue of a valid warrant because of the terms of s10(4A).

69 However the warrants in question were substantially in the from prescribed by the Fisheries Regulations, reg19A and Sch2. That form provided for a preamble as follows:

"WHEREAS, on an application made under sub-section 10(3) [sic] of that Act [ie, the 1952 Act] in relation to land or premises at , I, (full name), a Justice of the Peace am satisfied by information on oath (or affirmation) that the issue of a warrant is reasonably required for the purposes of that Act ...".

70 The wording in that form was appropriate when it was first prescribed. Prior to the commencement of the Fisheries Amendment Act 1978, the 1952 Act had made no provision for search warrants. The 1978 Act amended s10 so that an application could be made under s10(3), and a warrant issued under s10(4), if a justice of the peace was satisfied by information on oath or affirmation that the issue of the warrant was reasonably required for the purposes of the 1952 Act. Warrants were available only in relation to the contravention of the 1952 Act, s13BB, which prohibited masters of foreign boats from landing fish in Australia without a licence with an appropriate endorsement. The Fisheries Regulations were accordingly amended by adding reg19A and, in Sch2, an appropriately worded form of warrant. By the Fishing Legislation Amendment Act 1985, the provisions of s10 as to search warrants were rewritten to include the subsections I have quoted above, but the Fisheries Regulations were not amended, with the result that the prescribed form of warrant was inappropriate to the relevant provisions in the 1952 Act.

71 I infer that the magistrates who issued the eight warrants did not recite the facts which s10(4A) required to exist as a jurisdictional basis for the issue of the warrants because they chose to follow the prescribed form. Such a situation was held by the High Court in Ousley (supra), not to result in the invalidity of a warrant. Accordingly I reject the submission that these warrants were bad as a result of no proper jurisdictional basis for their issue being disclosed on the face of them.

72 It was submitted that the warrants were not in the form prescribed by the regulations, that they did not refer to the 1952 Act, s13BB, and in that they made no reference to s10(3), as required by the form. I accept the Crown's submission that there has been substantial compliance with the prescribed form, and that that is all that is required because of the Acts Interpretation Act 1901 (Cth), s25C. Strict compliance with the prescribed form would have been absurd.

73 It was submitted that these eight warrants were bad because the authorisation appearing on the face of each of them was too broad. The authorisation provisions in the eight warrants all followed a similar form. The South Australian one commenced as follows:

"YOU ARE HEREBY AUTHORISED, with assistance of the persons named in Schedule 1 to this warrant, to enter the land or premises occupied by and/or used by: VICTRAWL PTY LTD and RIGIL KENT FISHERIES PTY LTD and located at Lot 1 Windsor Avenue, Port Lincoln, South Australia, for the purpose of ascertaining whether there is on that land or in those premises any documents, equipment or things which will satisfy all three of the following conditions, that is to say: ...".

74 Schedule 1 listed a number of police officers. The first of the three conditions listed the types of things which were to be the subject of the search, eg, documents, files, diaries, banking records. The second condition listed a number of companies, people, boats and business names. The third condition began, "Things as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences against the law of the Commonwealth, namely that:" - and then listed a series of offences or supposed offences contrary to the 1952 Act, s14(2)(ba), and the Crimes Act, s86(1)(a), as discussed above. The list of offences included details of dates, and the names of either vessels or people involved in the possible commission of such offences. In many instances "Catch Disposal Record SEF2" forms were referred to. I accept the Crown's submission that these were standard three-condition warrants, and that they are not legitimately distinguishable from the similar warrants that were held not to be too wide by Lockhart, Beaumont, Hill and Lindgren JJ in Dunesky v Elder [1994] FCA 1006; (1994) 126 ALR 522.

75 Next, it was submitted that the offences or possible offences listed in each of the eight warrants was insufficiently particularised. The listed offences did not specify any species of fish. There were references to false or misleading information in forms, but the subject matter of the false or misleading information was not specified. A copy of a page from a Catch Disposal Record SEF2 form was tendered on the voir dire. It provided for information to be filled in as to the name of a boat, its distinguishing symbol, its port of unloading, the starting and finishing dates of a trip, the name of the recipient of the consignment of fish, the name of the transporter, the number of kilos of each of various species that were caught, the region in which they were caught, and a "Form Code", indicating whether the fish of each species were whole, gutted, headed and gutted, filleted, or in some other form. The description of the conspiracy offences did not even refer to SEF2 forms, but only to s14(2)(ba), which provided as follows:

(ba) in a record, report, return or other document relating to fishing made, given or furnished, or purporting to be made, given or furnished, under this Act, the regulations or a plan of management, makes a statement or furnishes information that is, to the knowledge of the person, false or misleading in a material particular;

76 It was submitted that the lack of precision in the descriptions of offences or possible offences resulted in the warrants being, in effect, general search warrants. It was argued that neither the holders of the warrants, nor the searchers, nor the persons whose premises were searched, could ever be satisfied that any item satisfied all three of the conditions set out in any warrant. I reject those submissions. I accept the Crown's submissions that there is no need for technical precision in the description of an offence. In describing offences in a warrant, a broad approach is appropriate, and it is not necessary to descend to the degree of particularity required to frame an indictment: Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 94 A Crim R 177 at 183. I am not persuaded that the wording of the offences was so vague that the warrants did not disclose the nature of the offences in question so as to define the scope of the authorised searches.

77 Next, counsel for the accused relied on a patent error in the South Australian warrant. I have already set out its preamble in par67 above. The South Australian warrant referred to "land or premises referred to in Schedule 1", when Sch1 was in fact a list of police officers. However, the warrant authorised a search of premises at Lot 1 Windsor Avenue, Port Lincoln. The warrant should be read as a whole, Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523 at 543. It should be read fairly, and not perversely, ibid at 546. Plainly the reference to Sch1 was a mistake. Plainly the issuing magistrate must have been satisfied of the matters required by s10(4A) in respect of the premises whose search he authorised. I therefore reject this submission.

Search warrants - Fisheries Management Act 1991 (Cth)

78 Eight of the warrants whose validity have been challenged were issued in pursuance, or purported pursuance, of the 1991 Act, s85, which at all material times provided as follows:

"85 - (1) If a magistrate, on application by an officer, is satisfied, by information on oath:

(a) that there are reasonable grounds for suspecting that there is, on any land or premises, or in any boat, vehicle or aircraft, anything that may afford evidence as to the commission of an offence against this Act or the regulations; and

(b) that the issue of the warrant is reasonably required for the purpose of ascertaining whether a person has contravened or is contravening a provision of this Act or the regulations; the magistrate may issue a warrant authorising the officer to enter the land, premises, boat, vehicle or aircraft, as the case may be:

(d) during such hours as the warrant specifies, or, if the warrant so specifies, at any time.

(a) the powers exercisable under subsection 84 (1) by the officer to whom the warrant is issued; and

(b) the day (not more than 7 days after the issue of the warrant) on which the warrant ceases to have effect.

(3) A reference in this section to an offence against, or a contravention of, this Act or the regulations includes a reference to an offence against, or a contravention of:

(a) sections 5, 6 or 7 or 7A of the Crimes Act 1914; or

79 With the exception of a warrant issued in South Australia on 13 December 1993, each of these warrants contains a statement as to its jurisdictional basis in the following terms:

(a) Of information on oath laid before me alleging that there are reasonable grounds for suspecting that the things are at the said premises; and

(b) That the grounds were set out in the affidavit; and

(c) That the things referred to in Schedule 1 may afford evidence as to the commission of the offences referred to in Schedule 3 and relate to the persons and entities referred to in Schedule 2; and

(d) That I am satisfied that this warrant is reasonably required to ascertain whether a person has contravened a provisions of the Fisheries Management Act 1991 and/or the Crimes Act (Cwlth) 1914."

80 It can be seen that subpar(d) does not correspond to the requirements of s85(1). The issuing magistrate was required to be satisfied not only for the purpose of ascertaining whether a person had contravened or was contravening a relevant legislative provision, as required by s85(1)(b), but also of the matters referred to in s85(1)(a), namely that there were reasonable grounds for suspecting that there was on land or premises something that might afford evidence as to the commission of an offence against a relevant legislative provision. Subparagraph (a) of the quoted extract from the warrant referred only to the laying of an information alleging that, and did not assert that the issuing magistrate was satisfied as to what was alleged. However, once again, all that has happened is that an inappropriately worded prescribed form of warrant has, in substance, been followed. The form of warrant used was prescribed by the Fisheries Management Regulations, reg10 and Sch1, Form 1. There is no requirement in the 1991 Act or the Fisheries Management Regulations for the warrant to include the omitted information as to the magistrate's satisfaction of the matters referred to in s85(1)(a). Only those matters specified in the Act or the form have to be stated: Ousley (supra). I therefore reject the submission that these warrants were bad as a result of not disclosing satisfaction on the part of the magistrate as to s85(1)(a).

81 Subparagraph (d) of the paragraph setting out the jurisdictional basis of each of these eight warrants, involved a departure from the prescribed form, which provided for the following to appear:

"(d) That I am satisfied that this warrant is reasonably required to ascertain whether a person has contravened a provisions of the Fisheries Management Act 1991 or the Fisheries Management Regulations."

In each case, instead of ending with the words "or the Fisheries Management Regulations", the warrant reads, "... and/or the Crimes Act (Cwlth) 1914". Not only has the reference to the regulations been omitted, but the reference to the Crimes Act pays no regard to the fact that, by virtue of the 1991 Act, s85(3), warrants under s85 cannot be issued in relation to offences involving contraventions of all provisions of the Crimes Act, but only in relation to offences involving contraventions of ss5, 6, 7, 7A or 86(1). But I think that the departures from the prescribed form were entirely appropriate. There has still been substantial compliance with it, as authorised by the Acts Interpretation Act 1901 (Cth), s25C. It would have been inappropriate for either of the issuing magistrates to have retained the reference to the Fisheries Management Regulations, since neither of them was satisfied that a warrant was reasonably required to ascertain whether a person had contravened a provision of those regulations. The reference to the Crimes Act was appropriate. No doubt each of the magistrates could have included a specific reference to s86(1)(a) in the relevant subparagraph in each warrant, but I do not think that was necessary. The prescribed form did not refer to specific sections or regulations at that point. The list of actual or suspected offences later in the warrant made it very clear that each magistrate was concerned with s86(1)(a), and not with any other provision in the Crimes Act. In the circumstances, there is no basis for saying that the wording of subpar(d) was inappropriate in the slightest.

82 Next, it was submitted that these warrants were bad because they purported to give their holders powers that they already possessed pursuant to the 1991 Act, s84(1). That subsection lists the powers that "officers" have under the 1991 Act. The word "officer" is defined in s4(1) so as, in substance, to include persons appointed as such, police officers, and members of the Defence Force. Some of the powers listed in s84(1) are unconditional. Others, such as the powers of entry, search and taking possession conferred by s84(1)(d), are exercisable only "with the consent of the owner or occupier of the land or premises or under a warrant issued under section 85".

83 A typical warrant in this series contained the following as to the powers exercisable by the officer to whom it was issued:

authorize you, with the assistance, and by the force, that is necessary and reasonable, at any time of the day or night:

(a) To enter the premises occupied by and/or used by VICTRAWL PTY LTD and located at Macquarie Wharf No 2, Hunter Street, Hobart, Tasmania.

(b) To search the said premises for the things referred to in Schedule 1.

(c) To seize, detain, remove or secure any document or other thing that the officer has reasonable grounds to believe may afford evidence as to the commission of any one or more of the offences referred to in Schedule 3 and which are present at the said premises and which fit the description of things referred to in Schedule 1 and which relate to persons and entitities referred to in Schedule 2."

84 Under the 1991 Act, s84(1)(g)(iii), an officer has the power, irrespective of the existence of any warrant, to "seize, detain, remove or secure ... any document or other thing that the officer has reasonable grounds to believe may afford evidence as to the commission of an offence against the Act". Thus the authorisation that the issuing magistrate purported to give in subpar(c) of the passage I have quoted was not really being given to the holder of the warrant at all. The holder already had those powers. The issuing magistrate had no power to confer them.

85 However, I do not think it follows that these warrants were invalid. The prescribed form provided as follows in relation to subpar(c) of the authorisation paragraph:

"(c) (describe any other power to be exercised by the officer)."

In my view the intention underlying that instruction was that a s85(1) warrant would set out the powers, over and above the powers of entry and search conferred by the issuing magistrate, which he or she anticipated that the holder would be exercising pursuant to s84(1). Whilst the wording suggested that the exercise of such powers, which were already possessed pursuant to s84(1), was being authorised by the issuing magistrate, this is yet another example of the use of an inappropriately worded prescribed form. It follows that the specification of powers already possessed by every officer did not invalidate any of these warrants.

86 Each of the 1991 Act warrants contained a list of offences or suspected offences similar to those set out in the 1952 Act warrants. Again, it was submitted that the description of such offences was so vague that no-one could tell what things the warrants were authorising a search for, and that each warrant was therefore bad on its face. I reject that submission for the same reasons that I rejected the similar submission as to the 1952 Act warrants.

87 As with the 1952 Act warrants, there was one 1991 Act warrant issued in South Australia which contained an erroneous reference to a Schedule. Subparagraph (c) of the paragraph disclosing the warrant's jurisdictional basis read:

"That the things referred to in Schedule 1 may afford evidence as to the commission of the offences referred to in Schedule 2."

In fact Sch2 was the customary list of companies, people, boats and business names. The list of offences was in Sch3. Reading the warrant fairly, not perversely, and as a whole, in accordance with the comments of Burchett J in Beneficial Finance (supra) at 543 and 546, one could only read "Schedule 2" as referring to the list of offences in Sch3. I reject the submission that this warrant was bad because of the obvious typographical error.

88 That was the extent of the attacks on the warrants under the 1991 Act. All of those attacks have failed. I determine that those warrants were all validly issued.

89 Two of the challenged search warrants were issued in New Zealand on 20 April 1998, pursuant to the Mutual Assistance in Criminal Matters Act 1992 (NZ) ("the NZ Act"), s44(1). Provision was made as to the inclusion of a description of an offence or offences by the NZ Act, s45(4)(b), as follows:

"(4) Every warrant issued under section 44 of this Act shall contain the following particulars:

(b) The offence or offences in respect of which the warrant is issued ...".

Each of these two warrants contained a paragraph in the following terms describing the offences in respect of which it was issued:

"Which there are reasonable grounds for believing will be evidence of the commission of the offences of Conspiracy to provide False Information to the Australian Fisheries Management Authority contrary to Section 107 of the Fisheries Management Act 1991 and paragraph 86(1)(a) of the Crimes Act 1914 of the Commonwealth of Australia - a prescribed foreign country under the Mutual Assistance in Criminal Matters Act 1992 - and being offences punishable by imprisonment for a term of 2 years or more."

90 Significantly by virtue of the NZ Act, s44(1)(a), such a warrant could only be issued in respect of an offence punishable by imprisonment for a term of two years or more. The maximum penalty for conspiring with another person to commit an offence against the law of the Commonwealth, contrary to the Crimes Act, s86(1)(a), was imprisonment for three years. However the maximum penalty for an offence contrary to the 1991 Act, s107, was imprisonment for 12 months. That section read as follows:

"A person must not knowingly present a document, make a statement or give a return or information, that is false or misleading in a material particular, to AFMA or another person performing duties under this Act or the Regulations.

91 The description of the actual or suspected offences in these warrants was inaccurate. It was accurate to refer to "offences of Conspiracy to provide False Information to the Australian Fisheries Management Authority", and it was accurate to refer to such offences as being contrary to "paragraph 86(1)(a) of the Crimes Act 1914", but it was not accurate to describe them as being "contrary to Section 107 of the Fisheries Management Act 1991".

92 However I do not think the clumsily worded description of the actual or suspected offences was sufficiently bad to invalidate either of these warrants. No-one reading them would get the impression that anything other than a conspiracy was punishable by imprisonment for a term of two years or more. No offence of providing false information, as distinct from conspiracy to provide false information, was referred to. Ideally, the warrants should have referred to "the offence of conspiring with another person to commit an offence against a law of the Commonwealth, namely to commit the offence of giving information that is false or misleading in a material particular to the Australian Fisheries Management Authority contrary to the Fisheries Management Act 1991, (Aust), s107, contrary to the Crimes Act 1914 (Aust), s86(1)(a)". But, if one reads the warrant fairly and not perversely, I think it must be interpreted as referring only to such a conspiracy offence, and that the wording complained of was sufficient to satisfy s45(4)(b).

93 Surprisingly, the Crown did not resist the defence submission in relation to these warrants on that basis. Instead, it was initially submitted that New Zealand law was foreign law, that no evidence had been adduced as to the law of New Zealand, and that this Court was not competent to make any finding as to the validity or otherwise of the New Zealand warrants. I reject that submission. It is true that New Zealand law is foreign law for the purposes of the common law: Attorney-General (New Zealand) v Ortiz [1984] AC 1. However a judge presiding in an Australian court exercising federal jurisdiction is entitled to inform himself or herself as to New Zealand legislation without formal proof, and in any way that he or she thinks fit, pursuant to the Evidence and Procedure (New Zealand) Act 1994 (Cth), s40. I have therefore informed myself as to the provisions and commencement of the NZ Act by getting a copy of the relevant provisions from this Court's librarian, who visited an appropriate website. Whilst I can have regard to New Zealand case law for the purposes of determining what the law of Australia is, and what the law of Tasmania is, it seems that relevant New Zealand cases would need to be adduced as evidence in order for me to make findings as to the case law of New Zealand. None were adduced as evidence, despite the ameliorative provisions of the Evidence Act 1995 (Cth), s175. As I have no basis for thinking that the common law of New Zealand as to the validity of search warrants is any different from that of Australia, I am not persuaded that the clumsy description of the conspiracy offences referred to in the warrants was such as to lead to their invalidity. I therefore determine that the New Zealand warrants were validly issued.

Legislation (Consequential Provisions) Act 1991

Mutual Assistance in Criminal Matters Act 1992

R v Turner & Ors

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (185 paragraphs)

R v Turner & Ors (No 4) [2001] TASSC 51 (4 May 2001)

Parties

Legislation Cited (4)

Cases Cited (19)