HEARING DATES: 26, 27 April, 8, 17, 18 May 2001

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

Commissioner for Railways v Small (1938) 38 SR(NSW) 564; Alister v R (1984) 154 CLR 404; Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41; Ali Tastan (1994) 75 A Crim R 498, referred to.

First Accused: M L Abbott QC, W P Boucault and M Selley

Applicants (recipients of subpoenas) G Livermore and P Bowen

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 60

1 The recipients of two subpoenas issued in relation to this matter, namely the Australian Fisheries Management Authority ("AFMA") and the Commissioner of the Australian Federal Police ("AFP"), have applied for those subpoenas to be set aside. The five accused have been jointly charged with a single count of conspiracy to defraud the Commonwealth and AFMA, an authority under the Commonwealth, contrary to the Crimes Act 1914 (Cth), s86A, by dishonestly agreeing to cause and permit false returns to be submitted to AFMA as to the quantity of orange roughy taken in the Australian Fishing Zone in 1992 and 1993. Pleas were taken some weeks ago from the accused, all of whom pleaded not guilty, in order to facilitate the determination of preliminary matters pursuant to the Criminal Code, s361A when convenient. A number of other subpoenas duces tecum have been issued, and are gradually being complied with. It is anticipated that a jury will be empanelled as soon after 23 July 2001 as the determination of preliminary arguments permits.

2 The Crown case is that each accused was a party to a continuing conspiracy which endured from about 1 December 1991 until about 31 December 1993. In 1992 and 1993 investigations involving the AFP were carried out at the instigation of AFMA in relation to the suspected understating of orange roughy catches. The challenged subpoenas call for the production of documents and things relating to those investigations and consequent decision-making as to prosecutions.

3 Two subpoenas have been received by AFMA in relation to this matter. No challenge has been made to the first, dated 9 April 2001. The applications before the Court relate to the second subpoena to AFMA, dated 20 April 2001, and one of the same date addressed to the Commissioner of the AFP. Each requires the production of a number of classes of documents. It has been submitted that I should set them aside on the grounds that (a) they are oppressive; (b) their object is not to obtain evidence to support a case but to discover whether there is a case at all (ie, they are fishing); (c) the accused are seeking to use them for the impermissible purpose of seeking discovery of documents; and (d) the accused are not able to show a legitimate forensic purpose for obtaining access to the classes of documents whose production is required. Counsel for the AFP conceded that par3 of the AFP subpoena, which requires the production of any document placed before any of the magistrates who issued 19 listed search warrants, was not oppressive, vexatious, or an attempt to obtain discovery. Otherwise, all of the different bases of objection that I have referred to are relied upon by the applicants in relation to all categories of documents listed in both subpoenas. For the purposes of determining these applications, a number of facts were agreed, and a number of documents were tendered by consent on the voir dire, but no oral evidence was given.

Principles relevant to the setting aside of subpoenas

4 A subpoena will be set aside as oppressive if it requires the production of too wide a class of documents. Thus, for example, in Commissioner for Railways v Small (1938) 38 SR(NSW) 564, which concerned an action for damages in which it was alleged that a passenger had fallen from a Sydney suburban electric train and died as a result of the railway authority's negligence, a subpoena which sought the production of (inter alia) "all documents, papers, reports and correspondence relating directly or indirectly to complaints about the running and control of electric trains", was regarded as so wide and oppressive as to amount to a serious abuse of the process of the court. Similarly, it is oppressive to issue a subpoena which imposes on a stranger to a piece of litigation the onerous task of collecting and producing documents, many of which can have no relevance to the litigation: National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382. A subpoena will amount to an abuse of the process of the court unless it states with reasonable particularity the documents which are required to be produced: Earl Powis v Negus [1923] 1 Ch 186 at 190; Commissioner for Railways v Small (supra) at 574. However "a degree of generality in the description of the documents may, according to the circumstances, be compatible with reasonableness": Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 570. Subpoenas which require their recipients to make judgments as to the relevance of documents to a particular subject matter have often been regarded as oppressive: Finnie v Dalglish [1982] 1 NSWLR 400; J Boag & Son Brewing Ltd v Carlton & United Breweries Ltd (B62/1996, Zeeman J). However it is quite permissible for a subpoena to require the production of a class of documents, and thus to require its recipient to make judgments as to which documents fall within that class: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 718.

5 A party is not entitled to use a subpoena duces tecum for the purpose of "fishing", which was defined by Jordan CJ in Commissioner for Railways v Small (supra) at 575 as "endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all". The criterion for determining what will or will not be permitted in the context of a criminal prosecution was defined by Gibbs CJ in Alister v R (1984) 154 CLR 404 at 414, where his Honour said:

"Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence."

There needs to be "something beyond speculation, some concrete ground for belief [that the documents will provide support for the case of the party issuing the subpoena] which takes the case beyond a mere 'fishing' expedition": Air Canada v Secretary of State for Trade [1983] 2 AC 394 per Lord Wilberforce at 439, cited with approval by Brennan J in Alister at 456. In R v Saleam (1989) 16 NSWLR 14 at 17, Hunt J said of a subpoena then under discussion that it "gave every appearance of a fishing expedition, in the sense that the appellant had no evidence that fish of a particular kind were in the pool but wanted to drag the pool in order to find out whether there were any such fish there or not".

6 I need to say a little more about the judgment of Gibbs CJ in Alister (supra). Immediately after the sentence I have quoted above, his Honour said (at 414 - 415):

"If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done."

At first glance, I found it difficult to reconcile this passage with the sentence that preceded it. If there are no grounds for thinking that a particular report could assist the accused, how could it be "on the cards" that it would materially assist the accused? I think the two quoted passages can be reconciled on the basis that the sentence I quoted earlier states a general proposition, whereas the subsequent passage relates to the special circumstances of the case in Alister. An ASIO agent had provided a report apparently implicating the accused, and was an important Crown witness. In those circumstances, the ASIO agent's report was of such enormous significance that, without any knowledge of its contents, it could be said that it was "on the cards" that a comparison of the agent's oral evidence with his report would materially assist the defence.

7 Discovery is not available in criminal proceedings: Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41 at 42;[1994] VicRp 2; (1993) 65 A Crim R 466 at 467; R v Saleam (supra) at 17. It is an abuse of the process of the court to use a subpoena for the purpose of obtaining discovery, even from a party to a civil action who is obliged to make discovery: Commissioner for Railways v Small (supra) at 575; National Employers' Mutual General Association Ltd v Waind (supra) at 382. A subpoena will be regarded as an improper attempt to obtain discovery if it describes documents in such terms as to require the making of a judgment as to what is relevant to the issues joined in a proceeding but, as Moffitt P said in Waind at 382, "It does not follow ... that because a party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of 'discovery'."

8 The relevant principle was stated succinctly by Barr AJ in Ali Tastan (1994) 75 A Crim R 498 at 504 as follows:

"It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made: Saleam (1989) 16 NSWLR 14; 39 A Crim R 406; Maddison v Goldrick [1976] 1 NSWLR 651; McPhail (1988) 36 A Crim R 390; Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090 at 1113 - 1114; A-G (NSW) v Stuart (1994) 34 NSWLR 667 at 681; 75 A Crim R 8 at 21, per Hunt CJ at CL."

9 Counsel for the accused have identified a number of forensic purposes which, they submit, justify the issue of these two subpoenas. The first relates not to a substantive defence but to a proposed application, relying on Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, for certain documents seized pursuant to eight invalid search warrants not to be received as evidence. I have already determined pursuant to the Code, s361A, that the eight warrants were invalid: R v Turner (No 4) [2001] TASSC 51. The proposition that the documents seized upon the execution of the invalid search warrants were illegally obtained is a simple one, but the arguments as to why the Court should exercise its discretion so as to exclude them are likely to be quite complex. It helps to understand when the eight warrants were issued in relation to a series of Federal Court decisions concerning the invalidity of the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the 1991 management plan") and the consequences of its invalidity. On 28 July 1992, O'Loughlin J declared that par11 of that plan was void: Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 351; (1992) 37 FCR 463. On 19 February 1993, the Full Court of the Federal Court dismissed an appeal from that decision: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381. The first four of the eight invalid warrants were issued in December 1993. On 31 May 1994, Einfeld J delivered an unreported judgment in which he held that par14 of the 1991 management plan, which provided for the allocation of quota units to boats, was invalid; held to be void a Ministerial notice that, in effect, set up a quota system for trawling in the South East Fishery; and held that certain prosecutions, which involved (inter alia) charges of failing to comply with quota conditions in licences, were not maintainable: Gray v Coleman (Butterworths Unreported Cases BC 9405906). The other four invalid warrants were issued only days later, on 8 June 1994. Final orders were made by Einfeld J on 5 September 1994. The Full Court dismissed an appeal from his decision on 23 December 1994: Coleman v Gray (1994) 55 FCR 412.

10 It is contended on behalf of the accused that documents within the scope of the subpoenas are likely to provide evidence that those who applied for the invalid warrants had views or concerns as to charges concerning the understatement of orange roughy catches in 1992 being unsustainable in the light of the Federal Court decisions, and chose not to explain, or fully explain, such views or concerns to the issuing magistrates. It is also contended that documents within the scope of the subpoenas are likely to provide evidence that those who retained documents seized pursuant to the invalid warrants realised, in the light of the Federal Court decisions, that they were unlawfully retaining the seized documents, and chose not to return them. It is also contended that documents within the scope of the subpoenas will reveal that the charge of conspiracy to defraud (contrary to s86A) was not contemplated until mid-1998, and thus that those who obtained and executed the invalid warrants did not have a reasonable suspicion that any documents seized pursuant to those warrants might afford evidence of the crime of conspiracy to defraud.

Defence that there was no deflection from the duty to prosecute

11 The second forensic purpose that is relied upon concerns a substantive defence that relates to one aspect of the Crown case. The Crown case, as particularised, is that the misstatement of orange roughy catches constituted a fraud upon the Commonwealth and AFMA in that, to the knowledge of the accused, public officers were likely thereby to be deflected from the performance of their public duties. Particulars delivered by the Crown in January of this year allege (inter alia) that officers in the Compliance Section of AFMA were likely to be misled into failing to prosecute breaches of the relevant legislation. I understand that counsel for the accused contend that the Crown will need to prove actual deflection, as distinct from a likelihood of deflection, in order to prove that the crime of conspiring to defraud, contrary to s86A, was committed. It is contended that documents within the scope of the subpoenas are likely to provide evidence that at all material times AFMA had evidence that would have supported charges so that, whilst there were no prosecutions, it cannot be established that there was any likely or actual deflection from the duty to prosecute.

Proposed application to stay for abuse of process

12 The third forensic purpose relied upon concerns a proposed application for proceedings on the indictment to be stayed on the ground of abuse of process. It is contended that documents within the scope of the subpoena are likely to assist the defence in that submission by providing evidence of one or more of the following:

(a) AFMA failing to discharge a statutory duty not to issue permits to persons whom it had reasonable cause to suspect were misreporting catches, when it had more than sufficient evidence to justify doing so;

(b) AFMA not discharging a statutory duty to suspend permits already issued to such persons, when it had more than sufficient evidence to justify doing so; and

(c) an unjustifiable delay in the prosecution of the s86A charge.

13 I note in passing that the nature of the relevant statutory provisions has been overstated. Under the Fisheries Management Act 1991 ("the 1991 Act"), s32(3), AFMA has a discretion - not a duty - to refuse to grant a fishing permit if it has reason to believe that a requirement of a law of the Commonwealth, or of a State or Territory, has not been complied with in relation to a particular boat. Similarly, under the 1991 Act, s38(1)(b)(i), AFMA has a discretion - not a duty - to suspend the operation of a fishing concession if it has reasonable grounds to believe that there has been a contravention of a condition of the concession. Mr Abbott QC told me on 26 April that AFMA was obliged to suspend a fishing concession in such circumstances, but he was overstating the effect of s38.

Proposed dismissal application under the Crimes Act, s86(7)

14 The fourth forensic purpose relied upon concerns an application that has been foreshadowed for the charge to be dismissed pursuant to the Crimes Act, s86(7). That subsection reads as follows:

"A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so."

The basis of the foreshadowed application has been revealed as follows. Under the 1991 Act, s107, it is an offence for a person to present a document, make a statement, or give a return or information, that is false or misleading in a material particular, to AFMA, or to another person performing duties under the 1991 Act or the regulations thereunder. The maximum penalty for such an offence is 12 months' imprisonment. If the quantity of a particular species allowed to be taken within a particular period was limited by a condition attached to a fishing permit under the 1991 Act, s32, the taking of a greater quantity of that species would amount to an offence contrary to s95. The maximum penalty for an offence contrary to s95, when the contravention does not relate to a foreign boat or a foreign fishing licence, was at all material times a fine of $10,000. Further, under s95(7) there is a two-year limitation period for the commencement of proceedings in respect of an offence against that section. However, the maximum penalty for a contravention of the Crimes Act, s86A, during the relevant period was 20 years' imprisonment and a fine of $200,000, and no limitation period applies in relation to that section. Defence counsel apparently propose to submit that the Crown chose to prosecute for the type of conspiracy now alleged because of the higher penalties available under s86A, the expiry of the time limit fixed by s95(7), the low maximum penalty fixed by s107, and the fact that other charges in respect of events occurring during 1992 are unsustainable in the light of the Federal Court decisions I have referred to. Defence counsel apparently propose to submit that the Crown was aware of one or more offences other than a s86A conspiracy, had a sufficient basis for prosecuting the same (or at least as good a basis for prosecuting the same as it has for prosecuting the present charge), and decided instead to proceed with the s86A charge. It is contended that documents within the scope of the two subpoenas are likely to demonstrate what defence counsel propose to submit, or at least materially assist in the making of such submissions.

15 On the fifth day of submissions concerning these subpoenas, Mr Abbott QC suggested a fifth basis upon which the subpoenas, or parts of them, were said to be supported by a legitimate forensic purpose. As I understood his argument, he contended that documents caught by the subpoenas could afford evidence that AFMA incited the commission of the alleged offence of conspiracy to defraud by illegally requiring the furnishing of information as to orange roughy catches. It is common ground that throughout 1992 AFMA required fishermen catching orange roughy and other species in the South East Fishery to complete and submit "SEF2" forms. These forms were headed "South East Fishery - Catch Disposal Record" and required the masters of boats to fill in details of (inter alia) the number of kilos of orange roughy caught on each trip. Each form contained a warning in the following terms:

AFS policy provides that all SET quota units will be suspended if the quota holder fails to lodge this record accurately completed within two working days of the prescribed deadline, to AFS or its agent. The prescribed deadline for this record is within 24 hours of unloading."

16 This was a warning that, unless an SEF2 form was lodged punctually after each trip, the skipper responsible could be stopped from catching fish by trawling in the South East Fishery for the rest of 1992. I have only one page from an SEF2 form as an exhibit on the voir dire, but I have further information as to the contents of SEF2 forms in a barrister's opinion - another exhibit on the voir dire, to which I will refer later - as follows:

"I note that the SEF2 form itself claims that maximum penalties of $2,000.00 for persons and $10,000.00 for corporations can be imposed by Courts upon conviction of the offence of not providing the required information with a similar penalty applied for not forwarding returns within the required time. The forms goes on to say that maximum penalties of $5,000.00 and/or imprisonment for us [sic] to 2 years for persons and $25,000.00 for corporations can be imposed by Courts upon conviction of the offence of providing information in a record report return or other document that is to the knowledge of the person false or misleading in a material particular."

17 It appears that the SEF2 forms constituted parts of log-books prescribed by the Minister pursuant, or purportedly pursuant, to the Fisheries Regulations, reg16(1). Those regulations were made pursuant to the Fisheries Act 1952 (Cth) ("the 1952 Act"). Under reg18(1), it was an offence for the master of an Australian boat licensed under the 1952 Act, s9, not to cause information relating to the taking, sale and disposal of fish taken in an area of proclaimed waters to be kept "in the appropriate form, in accordance with the requirements set out in the log-book". The maximum penalty was a fine of $2,000.

18 It seems indisputable that, as a result of the 1991 management plan being void ab initio, AFMA had no legal right to require the completion and submission of SEF2 forms. Defence counsel wish to argue that AFMA acted illegally in compelling people to complete and submit forms stating the quantities of orange roughy that had been caught in the South East Fishery in 1992. They propose to rely on the High Court's decision in Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19, in which it was held that evidence of the illegal importation of heroin by law enforcement officers for the purpose of entrapment should have been excluded on the grounds of public policy. As I understand it, there will either be an objection to the tendering of SEF2 forms for the year 1992 as exhibits on the trial, or an application for a preliminary determination pursuant to the Code, s361A to the effect that they are not to be admitted. As I understand it, it is contended that it will help the defence if documents are produced showing that AFMA officers knew or suspected that there was no legal right to compel the submission of SEF2 forms, and still compelled the accused and other operators in the fishery to submit them. The foreshadowed argument concerning Ridgeway may raise interesting questions of law as to whether that case applies only to law enforcement officers, and not to fisheries officers; and as to whether it applies only when the illegal conduct in question is criminal conduct, or also to the demanding of information by a public officer lacking lawful authority to demand it.

19 So far as the two subpoenas are concerned, I can dispose of the arguments in relation to Ridgeway at this point. Ridgeway applies only when law enforcement officers, and perhaps others, resort to illegal conduct for the purpose of inducing the accused to commit the crime or offence with which he or she has been charged. On the material before me, there is no evidence to suggest that AFMA officers, AFP officers, or anyone else, required, or continue to require, the completion and submission of SEF2 forms for the purpose of entrapment, ie, for the purpose of inducing the commission of a crime or offence. It is not impossible that some such sinister motive existed in the minds of one or more officers, but there is no evidence before me to support such a proposition. It follows that it is not likely, or "on the cards", that any document of any description will assist the accused by providing support for a Ridgeway argument. Insofar as the subpoenas seek the production of documents for the purpose of strengthening a Ridgeway argument, they are simply fishing. I therefore need not to refer to the proposed Ridgeway argument again when considering whether particular paragraphs in the subpoenas are supported by legitimate forensic purposes.

20 This subpoena requires the production of five categories of documents. The first two categories, as amended, are worded as follows:

"1 Any document provided by AFP or TASPOL [the Tasmanian State Police] to AFMA which contains information referring to or connected with any one or more of the accused in this proceeding, the trawl boats known as 'Lorna Dorn', 'Monika', 'Rosa S' or 'Belinda', the owners of such boats or the directors of any corporate owner of such boats in relation to fishing and related activities during the relevant period.

2 Any document created or received by AFMA which contains information referring to or connected with any investigation of any one or more of the accused in this proceeding, the trawl boats known as 'Lorna Dorn', 'Monika', 'Rosa S' or 'Belinda', the owners of such boats or the directors of any corporate owner of such boats for suspected under-reporting or misreporting of catches of orange roughy caught or proposed to be caught in the SEF [the 'South East Fishery'] during the relevant period."

21 The subpoena contains a page of definitions. The word "document" is widely defined so as to include practically anything that contains information. The "relevant period" is defined to mean the period from 1 November 1991 to 31 December 1993 inclusive. The term "fishing and related activities" is the subject of a long and thorough definition which effectively covers orange roughy fishing and practically any related activity, but nothing to do with any other species of fish.

22 I am not satisfied that AFMA is aware, or ought reasonably to be aware, of the identities of all the owners of the four boats referred to, nor the identities of all the directors of any corporate owners of such boats. It is common ground that the past investigations concerning the understatement of orange roughy catches were by no means confined to the accused in this case and the boats referred to. It may be that documents were created or received by AFMA in relation to individuals who owned one or more of the specified boats, or were directors of a corporate owner of one or more of those boats, that are of no relevance or use at all in relation to this case. Thus pars1 and 2 of the subpoena, in referring to "the owners of such boats or the directors of any corporate owner of such boats" are too wide, and the subpoena is oppressive and an abuse of the process of the Court.

23 It is clear from the material before me that the Crown alleges that, as a result of the conspiracy alleged in the indictment, orange roughy catches in respect of each of the specified boats were understated, at least at times, during the relevant period. However, I think that pars1 and 2 of the subpoena, taken together, are so widely worded that the subpoena must be regarded as an impermissible attempt to seek discovery by AFMA in relation to this proceeding. It is true that par2 is confined in its scope to documents containing information referring to "any investigation ... for suspected under-reporting or misreporting of catches of orange roughy caught or proposed to be caught in the SEF during the relevant period", but for practical purposes the class of documents described in par2 represents every document in AFMA's possession, power or control relevant to the allegation that the five accused conspired to cause and permit false returns to be submitted to AFMA as to the quantity of orange roughy taken in the Australian Fishing Zone in 1992 and 1993 - the central allegation in the indictment.

24 I will deal with par3 of the subpoena after dealing with pars4 and 5. Paragraph 4, as amended, reads as follows:

"4 Any documents which satisfy all of the following conditions, that is to say:

The documents which were created or received by AFMA and which are in the possession, custody or power of AFMA.

The documents which refer to or are connected with fishing and related activities in the SEF during the relevant period.

The documents which contain, record or refer to opinions as to the consequences or ramifications of the judgments or contemplated adverse judgments of:

(1) His Honour Justice O'Loughlin of the Federal Court of Australia in Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy [1992] FCA 351; (1992) 37 FCR 463;

(2) The Full Court of the Federal Court of Australia in Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 112 ALR 211;

(3) The Full Court of the Federal Court of Australia in Coleman v Gray (1994) 133 ALR 328.

(4) Einfeld J of the Federal Court of Australia in Gray v Coleman; Pirello (Junior) v Coleman; and La Macchia v Coleman (Unreported decision of 31 May 1994; Butterworths Unreported case BC 9405906).

The documents which were used or considered by AFMA in the course of the investigation of, or applications for or the execution of search warrants sought or proposed to be sought for the purposes of seeking evidence which might afford evidence of the commission of offences by, or the taking or contemplated taking of action by AFMA to impose sanctions or restrictions upon Operators relating to or arising out of any of the activities referred to in the Second Condition."

25 As can be seen, the author of the subpoena has adopted a rather awkward literary style, similar to that sometimes seen in search warrants. Essentially, this paragraph seeks the production of any written material in the possession, custody or power of AFMA concerning the Federal Court litigation as to the invalidity of the 1991 management plan and the consequences thereof, insofar as that material is related to orange roughy fishing in the South East Fishery during the period to which the indictment relates, and insofar as that material was used or considered by AFMA in the course of (a) the investigation of fishing licence holders, fishing permit holders, and/or their agents in relation to such orange roughy fishing; (b) search warrants or proposed search warrants relating to offences suspected to have been committed by such persons in relation to such orange roughy fishing; and (c) action taken or contemplated by AFMA by way of the imposition of sanctions or restrictions upon such persons in relation to such orange roughy fishing. I do not think par4 can be summarised more simply. I do not think I have oversimplified it in any significant way.

26 The propriety or otherwise of par4 needs to be evaluated by reference to the forensic purposes relied upon by defence counsel. No doubt they hope to flush out documents that will tend to prove that the eight invalid search warrants were obtained by officers who suspected or believed that, because of the invalidity of the 1991 management plan, there could be no successful prosecutions for exceeding orange roughy quotas during 1992, and that such officers either misled the magistrates who issued the warrants, or at least omitted to provide those magistrates with information that probably would have led to them not issuing the warrants. No doubt defence counsel hope to flush out documents that will tend to prove that AFMA, or somebody, retained documents seized pursuant to the eight invalid warrants when they knew or ought to have known of the warrants' invalidity. But is the production by AFMA of documents tending to prove those things "on the cards"? For a start, I have evidence that satisfies me that the investigations carried out into the alleged or suspected over-fishing of orange roughy in the South East Fishery in the relevant period were undertaken not by AFMA but by the AFP, admittedly at AFMA's instigation. The eight invalid warrants were all issued not to AFMA officers but to police officers, apparently both State and Federal. Mr Abbott QC submitted that such officers were the agents of AFMA, but I reject that submission. The AFP and State police forces operate independently, though no doubt in conjunction with AFMA, in the investigation and prosecution of fisheries offences. Although State and Federal police officers fall within the definitions of "officer" in both the 1952 Act, s4(1) and the 1991 Act, s4(1), there is nothing in either Act to suggest the existence of a principal/agent relationship between AFMA and them.

27 Perhaps more significantly, there is a body of evidence before me which suggests that those who sought these warrants probably believed that it was appropriate to seek them, and that prosecutions for over-fishing in 1992 could still be brought under the 1952 Act. Certainly AFP officers were watching the Federal Court litigation in 1992. One of them noted in a running sheet in September of that year, "AFMA need to win appeal as all prosecutions of 1992 would not go ahead". AFMA issued a press release on 24 September 1992 quoting its managing director as saying, "Pending the hearing of the appeal, all action by AFMA in relation to existing prosecutions which depend on the validity of quota allocations has been placed on hold". An AFP internal memorandum in mid-1993 concerning orange roughy fishing from Victoria and Tasmania recorded, "A Federal Court Decision and consultation with DPP placed an embargo on preferring charges against any individuals or companies last year". But in late 1993 AFP officers, through an officer of the Commonwealth DPP, sought advice from senior counsel in Melbourne in relation to the preparation of search warrants and of informations to be used when applying for those warrants. Senior counsel considered the implications of the 1992 Federal Court decisions, and advised against any prosecutions for breaches in 1992 of regulations as to the keeping of log-books, on the basis that those regulations were dependent upon quotas having been validly imposed, but recommended prosecutions under the 1952 Act, s14(2)(ba), for furnishing false information in SEF2 forms. He did not have the benefit of the 1994 Federal Court decisions, and had not turned his mind to the impact of the invalidity of the 1991 management plan on the applicability of the 1952 Act, which was being phased out. That is to say, he did not address his mind to the matters which led me to conclude (R v Turner (No 4) (supra)), that the magistrates who purported to issue the eight warrants under the 1952 Act had no jurisdiction to do so.

28 From the evidence before me, I cannot establish precisely when senior counsel provided written advice recommending the issue of warrants under the 1952 Act with a view to the institution of prosecutions under s14(2)(ba) thereof. It seems likely that he only ever provided such written advice in draft form, and in relation to a proposed Victorian prosecution. However AFP Agent Ryan, who was involved in the preparation of the four invalid warrants issued in December 1993 and the informations used in applying for them, conferred with the barrister in question on 22 October 1993 and 5 November 1993 in relation to them. I infer that he and the other police officers involved relied upon advice from that barrister in seeking the four December 1993 warrants. I therefore think it most unlikely that production of any of the documents sought by par4 of the subpoena will afford evidence of any impropriety in relation to the seeking of those warrants.

29 There is nothing in the evidence before me to indicate that AFMA was involved in the seeking of the other four invalid warrants, which were issued on 8 June 1994. There is nothing in the evidence to indicate that the police officers involved in obtaining those warrants were alert to the proceedings before Einfeld J. In his Honour's judgment of 31 May 1994, he held that, as a result of the invalidity of par11 of the 1991 management plan, licences purportedly issued under the 1952 Act that contained invalid conditions concerning gemfish quotas were wholly void, but the judgment contained nothing to the effect that the Fisheries Legislation (Consequential Provisions) Act 1991 (Cth), s6, did not operate to continue the 1952 Act in force in relation to the South East Fishery. The judgment included findings that prosecutions under the 1952 Act, s13(1)(f), (g) and (h), for non-compliance with licence conditions, could not be sustained because the relevant licences were not valid. It contained a finding that a prosecution under s13(1)(i) for doing an act prohibited by a s8 notice could not be sustained because the Minister's notice was not valid. But the offences or suspected offences referred to in the invalid warrants issued in June 1994 involved s14(2)(ba), which prohibited the furnishing of false information even in a document purporting to be furnished under the 1952 Act, its regulations or a plan of management. To a police officer not au fait with the complexities and subtleties of administrative law, it would hardly have been readily apparent that, if Einfeld J was right, s14(2)(ba) could not be relied upon. Furthermore, the response of the unsuccessful respondent in Gray v Coleman was to appeal to the Full Court, but not until after Einfeld J had made his final orders in September 1994. All of this leads me to think it is at best speculative, and more likely fanciful, to think that documents that might assist in establishing impropriety in the obtaining of the June 1994 warrants might be flushed out in response to par4 of the subpoena. That is not "on the cards" at all. In this respect, this case is indistinguishable from Ali Tastan (supra), in which a subpoena to produce documents relating to the issue of a warrant was set aside as lacking any legitimate forensic purpose because it did not appear to be "on the cards" that the documents would materially assist the person at whose request the subpoena had been issued.

30 There is no evidence before me to suggest that it ever occurred to anyone within AFMA or the AFP, in consequence of the 1994 Federal Court decisions or otherwise, that the eight search warrants purportedly issued pursuant to the 1952 Act might have been invalid, nor that the documents seized pursuant to those warrants might be being held illegally. There is no more than a mere possibility that the production of documents falling within the scope of par4 would bring to light evidence that the seized documents were retained by officers who knew or suspected that they were being retained illegally. That is not something that is "on the cards".

31 Documents within the class described by par4 might well provide evidence that a s86A charge was not contemplated until mid-1998, but I do not believe that it would be of any advantage to the accused to demonstrate that fact. The warrants were issued because of suspicions that offences contrary to the 1952 Act, s14(2)(ba), had been committed, and because of suspicions that people had conspired to commit such offences. It follows that, when documents were seized pursuant to the invalid warrants, no thought was being given to a s86A prosecution. I think it therefore does not matter when a s86A prosecution was first contemplated. If the legal representatives of the accused wish to have documents produced in order to demonstrate when it was decided to resort to s86A, then I do not think any such forensic purpose is a legitimate one justifying the issue of a subpoena.

32 There is no reason to think that documents relating to the impact of the Federal Court litigation, and thus within the scope of par4, might strengthen the proposed submission that AFMA at all material times had evidence which supported charges, but chose not to prosecute, so that it cannot be shown that there was any actual or likely deflection from the duty to prosecute. There is no likelihood that documents within the scope of par4 would assist the accused in submitting that AFMA failed properly to exercise its discretion not to issue permits to persons reasonably suspected of misreporting, nor its discretion to suspend permits issued to such persons. There is no reason to think such documents might assist the defence in a submission that there has been unreasonable delay in the prosecution of the present charge. Such documents have nothing to do with the proposition that the Crown chose the present charge because other possible charges involved lower maximum penalties, and were subject to time limits that had expired. Documents within the scope of par4 might well reveal that one factor leading to the laying of the present charge was that the accused could not be charged with offences against a number of provisions of the 1952 Act in respect of their activities during 1992. But it is clear beyond doubt that no prosecution under the 1952 Act could have been maintained in respect of anything to do with fishing for orange roughy in the South East Fishery in 1992. I therefore think the accused could not gain any forensic advantage, particularly in relation to the proposed s86(7) dismissal application, by obtaining the production of documents which establish the known fact that the Crown learned that such charges would be unsustainable, and the details of how, when, and through whom, that fact became understood. It follows that par4 of this subpoena is bad because it has no legitimate forensic purpose.

33 The fifth and final paragraph of this subpoena reads as follows:

"5 Any document provided by AFMA to AFP, AGS, TASPOL or CDPP for the purpose of seeking the issue of the Warrants."

34 For the reasons stated above, I do not think it is "on the cards" that any document within AFMA's custody, possession or power, is likely to assist the accused in any submission that there was impropriety in obtaining the issue of any of the eight invalid search warrants. In relation to those warrants, the subpoena is fishing. The word "Warrants" in the subpoena is defined so as to include eleven other warrants, ten of which I held to be valid in my previous ruling: R v Turner (No 4) (supra). A challenge to the validity of the remaining warrant was abandoned. These eleven warrants are unconnected with any of the forensic purposes relied upon by defence counsel. They may have been included in the subpoena by mistake. Paragraph 5 of the subpoena does not have any legitimate forensic purpose in relation to the valid warrants. It is therefore an abuse of process.

"3 Any document containing or recording any consideration or decision given or made by AFMA, AFP, AGS, [the Australian Government Solicitor or the office thereof] TASPOL or CDPP [the Commonwealth Director of Public Prosecutions or the office thereof] regarding the prosecution of any one or more of the accused in this proceeding, the owners of the trawl boats known as 'Lorna Dorn', 'Monika', 'Rosa S' or 'Belinda', any member of the crew of such boats or the directors of any corporate owner of such boats arising out of the activities or dealings or suspected activities or dealings of the accused, such boats or such persons or entities relating to orange roughy caught or proposed to be caught in the SEF during the relevant period for offences under or breaches of the Fisheries Act 1952 or Regulations thereunder, the Fisheries Management Act 1991 or Regulations thereunder or the Crimes Act 1914."

36 It can be seen that this paragraph relates to decisions whether to prosecute or not to prosecute, and to associated decision-making processes. The accused or their legal representatives are seeking to find out what decisions were taken, and what was said or written in the course of the decision-making processes.

37 There is ample evidence before me to suggest that, by June 1992, AFMA officers suspected that orange roughy catches in the South East Fishery were being understated on a large scale by fishermen submitting SEF2 forms. By that month, the AFP had been approached about undertaking a large-scale investigation. There is evidence to suggest that a decision was made in or about July 1992 to undertake surveillance of orange roughy catches being landed at Margate. By November 1992, preparations were being made for the obtaining of search warrants in relation to the understatement of orange roughy catches. In the light of that evidence, I think it is likely that there are documents within the scope of par3 of the subpoena that would reveal or suggest that, by some date in 1992, AFMA officers, particularly those in its Compliance Section, were viewing the data as to orange roughy catches on SEF2 forms as unreliable. I think it follows that par3 is not fishing - the accused are seeking documents to support their case, rather than trying to find out whether they have a case at all. It also follows that they have a legitimate forensic purpose in seeking the production of such documents, in that they are seeking to rebut, or at least cast reasonable doubt in relation to, the Crown's allegation that the misstatement of orange roughy catches was likely to deflect officers in the Compliance Section of AFMA from prosecuting breaches of the relevant legislation. It is true that a conviction might still be obtained on the basis that other officers were likely to be deflected from the performance of their public duties in other respects, and that documents within the scope of par3 might not contribute to an acquittal of a conspirator who had commenced to commit the crime alleged prior to AFMA officers forming suspicions as to what was going on. But a document need not support every aspect of an accused person's defence in order for its production to serve a legitimate forensic purpose.

38 I do not think par3 amounts to an attempt to obtain discovery, since its subject matter is confined to decisions whether or not to prosecute, and associated decision-making processes. The paragraph does not require AFMA to make judgments as to what documents are or are not relevant to issues in these proceedings. It requires AFMA to make judgments as to which documents fall within the class of documents that it describes, but I think that, in the circumstances, that course is "compatible with reasonableness": Lucas Industries v Hewitt (supra). I have no reason to think that the accused and their legal representatives are able to be any more specific in defining the class of documents that they can reasonably ask to be produced in relation to decisions whether to prosecute and associated decision-making processes. I think the paragraph is too wide, to the extent that it refers to the owners of the four specific boats, any member of the crew of such boats, and the directors of any corporate owner of such boats, for the reasons that I explained in relation to pars1 and 2 of the subpoena. However, I consider that par3 would not be too wide if the offending words were deleted, as follows:

"3 Any document containing or recording any consideration or decision given or made by AFMA, AFP, AGS, TASPOL or CDPP regarding the prosecution of any one or more of the accused in this proceeding, the owners of the trawl boats known as 'Lorna Dorn', 'Monika', 'Rosa S' or 'Belinda', any member of the crew of such boats or the directors of any corporate owner of such boats arising out of the activities or dealings or suspected activities or dealings of the accused, such boats or such persons or entities relating to orange roughy caught or proposed to be caught in the SEF during the relevant period for offences under or breaches of the Fisheries Act 1952 or Regulations thereunder, the Fisheries Management Act 1991 or Regulations thereunder or the Crimes Act 1914."

39 I observe that the paragraph is worded in such a way that its whole sense would be changed if one were to strike out references to the owners without striking out references to the boats.

40 In my view the preferable course is not to set aside this subpoena as an abuse of process, but to strike out so much of it as is necessary to prevent it being an abuse of process. Such a course was taken in some of the authorities that I was referred to (eg, Lucas Industries v Hewitt (supra)), but only ever in a situation where a rule of court provided for a subpoena to be set aside "wholly or in part". In the criminal jurisdiction of this Court, there are no rules applicable to subpoenas. A subpoena is a common law writ. There is no reason why the inherent powers of the Court in cases such as this should be confined to the setting aside of the whole writ, rather than the striking out of parts of it. To place the accused in a position where they would need to issue and serve a new subpoena would unnecessarily delay and complicate this already slow and complicated matter.

41 For these reasons I order that the following be struck out from the subpoena duces tecum addressed to AFMA dated 20 April 2001:

(b) the words "the owners of the trawl boats known as 'Lorna Dorn', 'Monika', 'Rosa S' or 'Belinda', any member of the crew of such boats or the directors of any corporate owner of such boats" and "such boats or such persons or entities" in par3 thereof.

42 The documents sought by this subpoena are described in four paragraphs, the first of which, as amended, reads as follows:

"1 Any documents which satisfy all of the following conditions, that is to say:

The documents which refer to any one or more of the following:

(2) the trawlers known as Lorna Dorn, Belinda, Monika and/or Rosa S;

(3) the owners of any of the trawlers referred to in (2) above during the relevant period;

(4) the directors of any corporate owner of any of the trawlers referred to in (2) above during the relevant period:

(5) the skippers of any of the trawlers referred to in (2) above during the relevant period.

The documents which refer to or are connected with fishing and related activities in the SEF during the relevant period.

The documents which were created or received by AFP and which are in the possession, custody or power of AFP.

The documents which describe, record or refer to any one or more of the following:

(1) the investigation or surveillance of any of the persons, entities or things referred to in the First Condition and relating to any of the activities referred to in the Second Condition;

(2) the commencement, continuation, resumption or cessation of any investigation or surveillance referred to in (1) above;

(3) the prosecution or contemplated prosecution or proposed prosecution of any of the persons or entities referred to in the First Condition for offences said or suspected to have been committed in relation to or arising out of any of the activities referred to in the Second Condition

(4) any application for or execution of any warrant to search for any things which might afford evidence of the commission of any offences(s) by any one or more of the persons or entities referred to in the First Condition in relation to or arising out of any of the activities referred to in the Second Condition."

43 The terms "document", "relevant period" and "fishing and related activities" are defined in the same terms as in the AFMA subpoena.

44 Paragraph 1 of the subpoena relates to both the investigative and prosecutorial roles of the AFP. It relates to its investigative activities in general, and to its activities in carrying out surveillance and obtaining search warrants in particular. There is no aspect of the AFP's activities in relation to this case that escapes the net cast by par1, nor is there any document with any possible connection with this case that escapes that net. Paragraph 1, despite the complexity of its wording, simply seeks discovery, and that is impermissible. Further, par1 is too wide in that it extends to documents relating to boat owners, and directors of corporate boat owners, in relation to orange roughy fishing in the South East Fishery in 1992 and 1993 in respects that could well be completely unconnected with the conspiracy alleged in the indictment.

45 Paragraph 2 of the subpoena, as amended, reads as follows:

"2 Any documents which satisfy all of the following conditions, that is to say:

The documents which were created or received by AFP and which are in the possession, custody or power of AFP.

The documents which refer to or are connected with fishing and related activities in the SEF during the relevant period.

The documents which contain, record or refer to opinions as to the consequences or ramifications of the judgments or contemplated adverse judgments of:

(1) His Honour Justice O'Loughlin of the Federal Court of Australia in Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy [1992] FCA 351; (1992) 37 FCR 463;

(2) The Full Court of the Federal Court of Australia in Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 112 ALR 211;

(3) The Full Court of the Federal Court of Australia in Coleman v Gray (1994) 133 ALR 328.

(4) Einfeld J of the Federal Court of Australia in Gray v Coleman (Unreported decision of 31 May 1994; Butterworths Unreported Judgments BC 9405906).

The documents which were used or considered by AFP in the course of the investigation, prosecution, contemplated prosecution of, or applications for or the execution of search warrants sought or proposed to be sought for the purposes of seeking evidence which might afford evidence of the commission of offences by, Operators relating to or arising out of any of the activities referred to in the Second Condition."

46 This paragraph is very similar to par3 of the AFMA subpoena. Of course it relates to documents in the possession, custody or power of the AFP, rather than AFMA. The second condition, as amended, specifies documents "which refer to fishing and related activities ...", rather than documents "which refer to or are connected with fishing and related activities ..." [my emphasis]. The fourth condition relates to documents used or considered by the AFP, rather than documents used or considered by AFMA.

47 In the light of the factual matters referred to in pars27 to 29 above, I do not think it is "on the cards" that documents within the scope of par2 of this subpoena might assist the accused in relation to a submission that there was impropriety in relation to the obtaining of the invalid search warrants in 1993 and 1994. Similarly, whilst there might be one or more documents suggesting that documents seized pursuant to one or more of the invalid warrants were retained after a realisation that the warrants were invalid, or might have been invalid, there is nothing to suggest that that is "on the cards", rather than a mere possibility. Further, for the reasons I gave in relation to par4 of the AFMA subpoena, it would not advance the defence, particularly the Bunning v Cross argument, for documents to be produced showing when a s86A prosecution was first contemplated.

48 According to a memorandum sent by the solicitor for the accused Turner to the solicitor for the AFP on 15 May 2001 (MFI 38, par7), it is also contended that par2 of this subpoena has a legitimate forensic purpose connected with the proposed application for the dismissal of the conspiracy charge under s86(7). For the same reasons that I gave in relation to par4 of the AFMA subpoena, I do not think the foreshadowed s86(7) application results in par2 of this subpoena having a legitimate forensic purpose.

49 Paragraph 3 of the AFP subpoena simply reads as follows:

"3 Any document placed before any of the Magistrates who issued any one of the Warrants."

50 The word "Warrants" is defined in the subpoena to refer to the same 19 warrants that I have referred to in relation to the AFMA subpoena. As I said at the outset, counsel for AFMA concedes that this paragraph is neither oppressive, nor vexatious, nor an impermissible attempt to obtain discovery, but contends that it lacks any legitimate forensic purpose.

51 For the reasons previously stated, I do not think it is "on the cards" that the production of the documents placed before the magistrates who issued the eight invalid search warrants is likely to strengthen a Bunning v Cross submission in relation to items seized pursuant to those warrants. There is certainly no reason to think that it is "on the cards" that the production of the documents relating to the issue of the valid warrants might expose any impropriety. There is no reason to think that the documents placed before the magistrate would assist the defence in any way in relation to the other forensic issues that are relied upon, which are described in pars11 to 14 above. It follows that par3 is fishing, and therefore impermissible.

52 Paragraph 4 of the AFP subpoena reads as follows:

"4 Any document containing or recording information relied upon for the forming of a suspicion that the persons named in the sub-paragraphs under the heading THIRD CONDITION in Warrant A1 may have committed the offences therein described."

53 The document described as "Warrant A1" is an invalid warrant issued by a South Australian magistrate on 13 December 1993, which authorised the search of premises occupied and/or used by Victrawl Pty Ltd and Rigil Kent Fisheries Pty Ltd at an address in Port Lincoln. The persons named in the subparagraphs under the heading "THIRD CONDITION" in that warrant comprise the accused Coulston (but not any of the other accused) and individuals named John Bythe McHugh, Susan Adele Willis, Derek Brian Weller, Richard Gurdon Samuel, Nedo Letinic, and Steven R Harvey. The Crown has alleged in the past that Susan Adele Willis was the office manager of a processing company named Trident, but otherwise I do not know who any of these individuals are. The third condition is a list of 16 offences or suspected offences, only three of which relate to Mr Coulston. Some relate to the furnishing of false or misleading information contrary to the 1952 Act, s14(2)(ba), and the others relate to offences contrary to the Crimes Act, s86(1)(a) by conspiring to commit offences contrary to s14(2)(ba). The fourth in the list of actual or suspected offences relates to the accused Coulston furnishing false information in SEF2 forms in relation to the vessel "Lorna Dorn" between 10 July 1992 and 18 December 1992. The fifth relates to Mr Coulston conspiring with Willis between 10 July 1992 and 18 December 1992 "at Hobart and other places in and out of the State of Tasmania". The sixth relates to Mr Coulston conspiring with Weller during the same period at a similar selection of places. There is nothing to link the accused Coulston with McHugh, Samuel, Letinic or Harvey.

54 I am unable to see how any legitimate forensic purpose of the accused could be served by requiring the production of documents which led AFP officers to form a suspicion that persons other than the accused had committed the other 13 offences or suspected offences listed in the warrant, which involve the provision of false information by McHugh, Samuel, Letinic and Harvey, and conspiracies between those said to have provided the false information, Willis, and sometimes Weller. The listed offences certainly extend the suspected conspiracies to include persons unknown, but there is nothing to indicate anything more than a mere possibility that the suspected offences bear so close a relationship to the present charge and the five accused that the documents sought in relation to them might materially assist one or more of the accused in some way.

55 Even if par5 of the subpoena had been confined in its scope to the three suspected offences in which Mr Coulston is mentioned, I would still regard it as fishing. I cannot see how it would be "on the cards" that the material which led one or more AFP officers to suspect Mr Coulston committed such offences could materially assist any of the accused in relation to the foreshadowed Bunning v Cross submission, the foreshadowed argument that there could not have been any actual or likely deflection of AFMA from its duty to prosecute, the foreshadowed application for a stay on the ground of abuse of process, or the foreshadowed application for dismissal of the charge under the Crimes Act, s86(7).

56 Thus, every paragraph of the AFP subpoena is bad. I order that it be set aside.