HEARING DATES: 23 - 27, 30, 31 July, 1 - 3 August 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 - Whether proof of actual deflection necessary.

Crimes Act 1914 (Cth), s86A.

Peters v R [1998] HCA 7; (1998) 192 CLR 493, Welham v Director of Public Prosecutions [1961] AC 103, referred to

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

Second Accused: A G Melick SC and B R McTaggart

Fourth Accused: B J Powell QC and I C Robertson

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 87

1 The five accused have been 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. The Crown alleges that they conspired to cause and permit false returns to be submitted to AFMA as to orange roughy catches in 1992 and 1993, and that the submission of such false returns was likely to deflect public officers from the performance of public duties that they had pursuant to legislation relating to fisheries. The accused have all pleaded not guilty, but a jury has not yet been empanelled. It was submitted on behalf of the accused that, in order for the Crown to obtain a conviction, it would be necessary for it to prove beyond reasonable doubt not just that the submission of false returns was likely to cause a deflection from the performance of a public duty or duties, but that there was actual deflection from the performance of a public duty or duties.

2 On 27 July 2001, I made a determination in favour of the Crown in relation to that question pursuant to the Criminal Code, s361A(d), as follows:

"1 On a charge of conspiracy to defraud the Commonwealth contrary to the Crimes Act 1914, s86A, by deflecting Commonwealth officers from the performance of their public duties, the Crown is not required to prove, as an ingredient of the crime, actual deflection from the performance of any public duty, as distinct from a likelihood of deflection from the performance of a public duty.

2 In order for the accused to be convicted in this case, it will not be essential for the Crown to prove any actual deflection from the performance of any public duty, as distinct from the likelihood of deflection from the performance of one or more public duties."

4 The nature of a conspiracy to defraud the Commonwealth was considered by the High Court in Peters v R [1998] HCA 7; (1998) 192 CLR 493. At 509, Toohey and Gaudron JJ said that that offence "involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others". As I have previously said, 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: R v Turner (No 4) [2001] TASSC 51 at par21. It is significant that an imperilling of legal rights or interests, ie the existence of a mere possibility that legal rights or interests would be adversely affected, is sufficient.

5 Similarly, McHugh J (with those reasons Gummow J agreed), said the following in Peters 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 ... or depriving another person of a lawful opportunity to obtain or protect property ... ".

6 In my view it must follow, in a case that involves the public duty of a public officer rather than private property, that the possibility of deflecting a public officer from the performance of his or her public duty is sufficient to establish the relevant element of the crime of conspiracy to defraud.

7 That was the position in Welham v Director of Public Prosecutions [1961] AC 103. In that case the appellant had forged hire-purchase agreements in order to make it appear that certain companies were advancing money in a permissible way, and had uttered the forged documents so that officers of the Board of Trade would be misled if they inspected the companies' records to see whether credit restrictions were being observed. The House of Lords held that the trial judge had been correct in directing the jury that the possibility of prejudicing an investigation was sufficient for the appellant to have had an intention to defraud.

8 The Crown contends that, on a charge of conspiracy to defraud the Commonwealth or a public authority under the Commonwealth contrary to the Crimes Act 1914, s86A, by deflecting Commonwealth officers from the performance of their public duties, actual deflection from the performance of a public duty, as distinct from a likelihood of deflection from the performance of a public duty or a possibility of deflection from the performance of a public duty, is not an ingredient of the crime. In the light of the above authorities, I agree. Defence counsel did not argue otherwise.

9 The Crown case, as particularised, is that the submission of false returns as to orange roughy catches pursuant to the alleged conspiratorial agreement was likely to deflect public officers from the performance of their public duties. It was submitted on behalf of the accused that, although actual deflection from the performance of a public duty is not an ingredient of the crime, there are special circumstances in this case by reason of which the Crown will not be able to prove its case beyond a reasonable doubt unless it proves that the submission of false returns as to orange roughy catches actually deflected one or more public officers from the performance of one or more public duties.

10 The circumstances said to lead to this result were listed in an outline of the submissions made by Ms Powell QC, as follows:

"* The conspiracy charged was allegedly performed.

* The particulars and the overt acts allege that not all of the accused were party to the alleged agreement when it was hatched but joined with, or departed from, the original conspiracy over the period of 25 months.

* The SEF2 forms were provided (in response to an unlawful request) pursuant to the 1991 Management Plan.

* The 1991 Management Plan and interrelated instruments are invalid.

* This Court has observed "The fact that the purported Management Plan was declared void raises difficult questions as to what public duties, if any, members of the relevant section were carrying out during the year." (para 11 Turner No 2 21 February 2001)

* This species of conspiracy has hitherto not been charged in Australia.

* The accused have not been charged with any substantive offence."

11 The indictment alleges that the accused conspired to defraud the Commonwealth and AFMA between about 1 December 1991 and about 31 December 1993. The Crown case is based on returns as to orange roughy catches said to have been submitted to AFMA in 1992 and 1993. The returns are known as SEF2 forms. In 1992, it is alleged that they were submitted in purported pursuance of the South East Fishery (Individual Transferable Quota) Management Plan 1991. That instrument purported to be a management plan pursuant to the Fisheries Act 1952 (Cth), s7B, but it was void: Coleman v Gray (1994) 55 FCR 412. It cannot be said that AFMA officers had a duty to administer a void management plan.

12 AFMA came into existence with the commencement of the Fisheries Administration Act 1991 on 3 February 1992. The Fisheries Management Act 1991 commenced on the same day. In this case the Crown relies on the Fisheries Administration Act, s6(1)(a), (b) and (d), and the Fisheries Management Act, s3(1)(a), (b) and (d), which are in identical terms, as follows:

"(1) The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:

(a) implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and

(b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development, in particular the need to have regard to the impact of fishing activities on non-target species and the marine environment; and

(d) ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources ... ".

13 As I understand it, the Crown case is that AFMA officers sought to manage that part of the fishing industry which involved fishing for orange roughy in the waters to which the invalid plan was intended to apply by fixing a total allowable catch for those waters for each calendar year, and by imposing a system of quotas by which the total allowable catch was divided amongst operators whom AFMA permitted, or meant to permit, to fish for orange roughy in those waters. The Crown might lead evidence that AFMA officers engaged in management planning for future years in respect of orange roughy fishing in those waters with a view to fixing annual total allowable orange roughy catches and determining annual quotas for orange roughy fishing operators. The Crown might establish that, as a result of an agreement between two or more of the accused, there were submitted to AFMA significant quantities of returns containing false information as to orange roughy catches. If such evidence were led, without any evidence as to whether or not the false information in such returns made any difference to any decision, I think it would still be open to a jury to infer that the mere submission of false information created a likelihood that, for at least one year, the total allowable catch for the waters in question, and/or the quota for one or more orange roughy operators, might be fixed at a figure that would have been significantly different if the returns had contained true information or not been submitted at all. I think it must follow that the accused could be convicted on that basis without the Crown proving any actual deflection from the performance of any public duty. I need not consider whether there are any other bases upon which a conviction could be possible without proof of any actual deflection.

14 It is true that the Crown have delivered particulars of the alleged overt acts that are relied upon, and that those particulars suggest that not all of the accused were parties to the alleged conspiratorial agreement at its outset. However, I do not think that state of affairs has any bearing on the question whether the Crown needs to prove actual deflection from the performance of any public duty. AFMA had a duty to manage the fishing industry. Management involves planning for the future. I cannot see any logical reason why the timing of the submission of forms containing false orange roughy catch information would necessarily make any difference to the likelihood or otherwise of public officers acting on that information in such a way as to be deflected from their public duties.

15 The matters relied upon by defence counsel in relation to this point might in due course form a basis for a submission to a jury that the Crown have failed to establish beyond a reasonable doubt any likelihood of deflection. However, there is no basis for a determination, prior to a jury being empanelled and hearing evidence, that the Crown will need to prove some actual deflection from the performance of a public duty in order to succeed.