McMurdo P, Holmes JA and Chesterman J, Judgment of, the Court
Catchwords
TAXES AND DUTIES – CUSTOMS AND EXCISE – JURISDICTION AND
PROCEDURE IN CUSTOMS PROSECUTIONS – HOW INSTITUTED AND
IN GENERAL –
where the respondent was convicted in the Magistrates Court of importing a
Source
Original judgment source is linked above.
Catchwords
TAXES AND DUTIES – CUSTOMS AND EXCISE – JURISDICTION ANDPROCEDURE IN CUSTOMS PROSECUTIONS – HOW INSTITUTED ANDIN GENERAL –where the respondent was convicted in the Magistrates Court of importing aprohibited import (a breech bolt) contraryto s 233(1)(b) of the Customs Act1901 (Cth) – where the respondent successfully appealed to theDistrict Court under s 222 Justices Act 1886 (Qld) – whether thelearned District Court judge erred in finding because of s 247 Customs Act1901 (Cth) that the proceedings were wrongly brought by way of complaint andsummons under the Justices Act and ought to have been brought by claimunder the Uniform Civil Procedure Rules 1999 (Qld).APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OFAPPEAL – WHEN APPEAL LIES – ERROR OF LAW –where themagistrate at first instance reserved decision for almost three months –where reasons when delivered orally comprised15 lines of transcript –whether District Court judge erred in determining magistrates reasons were so
seriously inadequate
as to amount to an error of law
TAXES AND DUTIES – CUSTOMS AND EXCISE – CUSTOMS REGULATIONS AND
BY-LAWS – where breach bolt capable of inclusion
within two items of
Schedule 6 to the Customs (Prohibited Imports) Regulations 1956 (Cth)
– where prohibited import only in respect of one item – whether the
District Court judge erred in finding that the
breech bolt the subject of the
charge was not a prohibited import because it fell within both items
Acts Interpretation Act 1901 (Cth) s 26(d)
Appeal Costs Fund
Act 1973 (Qld)
Customs Act 1901 (Cth), s 233(1)(b), s 245, s 247,
s 248
Customs and Excise Amendment Act 1982 (Cth)
Customs
(Prohibited Imports) Regulation 1956 (Cth)
District Court of
Queensland Act 1967 (Qld)
Justices Act 1886 (Qld), s 222
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd
[2003] HCA 49
(2003) 216 CLR 161, considered
Chief Executive Officer of Customs v
Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40,
considered
Martin v Rowling & Anor [2005]
QCA 128
Appeal No 5840 of 2005, 27 April 2005, considered
Pettitt v
Dunkley [1971] 1 NSWLR 376, considered
Project Blue Sky Inc v
Australian Broadcasting Authority [1998] HCA 28
(1998) 194 CLR 355, applied
Judgment (72 paragraphs)
[1]
The applicant contends that the emphasised words show a legislative intent to continue to allow Customs officers to institute proceedings by the summary procedure outlined in s 248; had the legislature intended the contrary it would have repealed s 248. The applicant has informed this Court that, prior to the decision the subject of this application, it commonly used s 248 to proceed by way of complaint and summons when prosecuting offences against the Customs Act summarily.
[2]
(d) The respondent's contentions and the notice of contention
[3]
[12] Mr Powell concedes that the Brisbane Magistrates Court is "a court of summary jurisdiction" under s 245(1) and that it had jurisdiction to hear Customs prosecutions brought under the Customs Act.
[4]
[13] Mr Powell relies on the District Court judge's reasoning. If the applicant were successful in attacking those reasons, he contends the judge's decision should be affirmed because s 248 only applies the law of summary proceedings to Customs prosecutions in courts of summary jurisdiction where those courts have no civil jurisdiction and no rules of civil practice and procedure. Most States and Territories now have a Local or Magistrates Court with both criminal and civil jurisdictions. That is the position in Queensland: see s 22A Justices Act 1886 (Qld). Those courts will have, in the terms of s 247, a "usual practice and procedure of the Court in civil cases". Those courts also have in terms of s 248 "provisions of the law relating to summary proceedings". Some courts of summary jurisdiction, however, like the Magistrates Courts of the Northern Territory[6] have only criminal and no civil jurisdiction, with the civil jurisdiction vesting in the separate Local Courts.[7] Section 245(1)(e) refers to the Local Court of the Northern Territory (a court with only civil jurisdiction) while s 245(1)(f) in its broader description of "a court of summary jurisdiction" also encompasses a summary court with only criminal jurisdiction like the Northern Territory Magistrates Court. Section 245(1)(e) and (f) read together with s 247 and s 248 draws a distinction between summary courts having only criminal jurisdiction (such as the Magistrates Court of the Northern territory) and summary courts having civil or civil and criminal jurisdiction. Where the court in which the Customs prosecution is instituted has civil jurisdiction, s 247 must apply; where the Customs prosecution is instituted in a court of summary jurisdiction with only criminal jurisdiction, s 248 applies. The word "may" in s 247 refers to the discretion to prosecute and is not merely permissive. The effect of s 247 and s 248 is that a Customs prosecution must be commenced in one of the three ways set out in s 247 unless it is commenced in a court of summary jurisdiction without any civil jurisdiction. In that case s 248 applies the provisions of the law relating to summary proceedings. Section 248 is not without meaning.
[5]
[14] The construction contended for by the respondent requires the phrase "a Court of summary jurisdiction in a State or Territory" in s 248 to be read as if it said "a Court of summary jurisdiction in a State or Territory which has no usual practice and procedure in civil cases". The learned District Court judge regarded that as the outcome of what he described as the removal from Part XIV of the dichotomy between civil proceedings in the High Court and the State Supreme Courts on the one hand, and summary proceedings in Courts of summary jurisdiction on the other. But an examination of the way in which the Act has been amended does not support a view that the amendments made were intended dramatically to change the effect of s 248.
[6]
[15] In 1979, s 245 was amended[8] to remove the reference to the High Court which appeared in the section, as set out earlier in these reasons,[9] so that it now permitted customs prosecutions to be instituted in the name of the Minister in the Supreme Court of a State or Territory, or where the prosecution was for a pecuniary penalty not exceeding a stipulated monetary amount or the excess was abandoned, in any County Court, District Court, Local Court or Court of summary jurisdiction of a State or Territory. Correspondingly, the reference to the High Court in s 247 was removed, and the limiting words "of any State" after "Supreme Court" were also deleted.
"245. (1) Customs prosecutions may be instituted in the name of the Comptroller by action, information or other appropriate proceeding -
[9]
(b) in the Supreme Court of the Australian Capital Territory;
[10]
(c) in the Supreme Court of the Northern Territory;
[11]
(d) in a County Court or District Court of a State; or
[12]
(e) in a Local Court, being a Local Court of full jurisdiction, of South Australia or of the Northern Territory;
[13]
(3) Customs prosecutions may be instituted in the name of a Collector by action, information or other appropriate proceeding in a court of summary jurisdiction of a State, of the Australian Capital Territory or of the Northern Territory."
[14]
Section 247, previously concerned with Customs prosecutions in a Supreme Court, was now amended to apply to any "court referred to in subsection 245(1)".
[15]
[17] In 1989 s 245 was amended again so as to omit sub-s (3) and bring courts of summary jurisdiction within the list of courts in sub-s (1): that is to say, into the form in which it now appears. At the same time the reference to institution of prosecutions "in the name of the Comptroller" was altered to "by the Comptroller". No amendment was made at that time or since to s 247. That section became applicable to courts of summary jurisdiction purely by virtue of their addition to the list in s 245(1).
[16]
[18] The Explanatory Memorandum describes the 1989 amendment to s 245 as -
[17]
"a technical amendment ... to make it clear that officers of the Australian Customs Service who have received a delegation from the Comptroller-General of Customs ... to exercise the power vested in the Comptroller-General by section 245 ... may, as delegates of the Comptroller-General, initiate prosecutions in courts ranging from Magistrate [sic] courts to State Supreme courts. The section also transfers to the Comptroller-General the right of a Collector to commence proceedings in lower courts."
[18]
Nothing in the amendments or in the Explanatory Memorandum suggests any intention to change fundamentally the operation of s 248, or to remove the distinction between civil and summary proceedings. More particularly, the re-ordering of s 245 seems a very slender basis for conferring on the term "Court of summary jurisdiction" in s 248 a new and shrunken meaning, one much more restricted than the definition given it in s 26(d) of the Acts Interpretation Act.
[19]
[19] In sum, there is, in our view, no warrant in the history of legislative amendment for reading "a Court of summary jurisdiction in a State or Territory" in s 248 in the limited way contended for. It may be that this construction requires s 247 to be construed as permissive rather than as mandatory, contrary to the view of Gummow J; but that approach is preferable to one which requires the clear words of s 248 to be disregarded. The result of the 1982 amendment is that a customs prosecution in a Magistrates Court in Queensland may be brought, by virtue of s 247, under the UCPR or in accordance with the court's directions, or, by virtue of s 248, under the Justices Act.
[20]
[20] The learned District Court judge erred in finding that the prosecution of Mr Powell under the Customs Act was wrongly brought by complaint and summons. Leave to appeal should be granted, and the appeal must succeed on this ground.
[21]
[21] This trial was heard in the Magistrates Court over three days and included detailed reasoned written submissions by both parties urging competing contentions and different results. The magistrate reserved his decision for almost three months. His reasons when delivered orally were recorded in 15 lines of transcript. They are set out in the District Court judge's reasons.[11]
[22]
[22] The applicant did not actively defend the reasons as adequate in the circumstances but nevertheless submitted that inadequate reasons do not necessarily amount to an error of law.
[23]
[23] Lengthy reasons, especially in summary trials, are not always necessary or even desirable. But the District Court judge rightly identified this case as a matter of some complexity in which the magistrate made no relevant findings of primary fact and did not analyse or identify the issues. This prosecution was not a simple or clear cut case where reasons were unnecessary in order for an appellate court to understand the magistrate's reasoning process and to determine whether Mr Powell's conviction was based on an error of law: Pettitt v Dunkley.[12] The magistrate's reasons, such as they were, were in this case so seriously inadequate as to amount to an error of law: see Martin v Rowling.[13] The judge's conclusion in this respect was plainly correct, but because of our views on the applicant's third contention that is ultimately of no assistance to the respondent.
[24]
[24] The District Court judge allowed the appeal but did not order a retrial because he found that the applicant had not established that the item the subject of the charge, a bolt, was a prohibited import under reg 4F Customs (Prohibited Imports) Regulations 1956 ("the Regulations"). That regulation relevantly provides:
[25]
"(1) ... the importation of ... a firearm part ... is prohibited unless:
[26]
(a) the ... firearm part ... is an article to which an item in Part 2 of Schedule 6 applies; and
[27]
(b) the importation is in accordance with the requirements set out in column 3 of the item."
[28]
[25] It was common ground that the bolt, a firearm part, was a prohibited import under the Regulations unless Mr Powell established he satisfied the requirements set out in Col 3 of Pt 2 of Sch 6 of the Regulations. The Regulations relevantly provided:
[29]
(including complete, but (a) the importation must comply
[30]
disassembled or unassembled, with at least 1 of the following
[31]
firearms), unless the firearm: (i) the official purposes test;
[32]
(a) has a fully automatic firing (ii) the specified purposes test;
[33]
(b) resembles in appearance a sub- (iv) the Police authorisation test;
[34]
machine gun, a machine pistol or a (v) the dealer test;
[35]
10 Firearm part (other than a frame or The importation must comply
[36]
receiver) of, or for, a firearm to with at least 1 of the following
[37]
... Firearm, not being a firearm to The importation must comply
[38]
12 which items 1, 2, 3 6 or 9 applies. with at least 1 of the following
[39]
... Firearm part of, or for, a firearm, The importation must comply
[40]
13 not being a firearm to which items with at least 1 of the following
[41]
[26] The applicant contended that the bolt was a part of a firearm within item 12 of the Schedule so that the bolt as a part of a firearm was within item 13 and its importation was prohibited in the absence of compliance with the requirements for item 13 in Col 3.
[42]
[27] The District Court judge reviewed the evidence and concluded that the imported bolt came within both items 10 and 13 of the schedule. His Honour's reasons were:
[43]
"[34] ... The [appellant's] case was that this firearm part fell within item 13 because it was a part for a firearm which fell within item 12, namely a MAC10 or a clone thereof, which was a copy of an Ingram submachine gun, and thus resembled an Ingram submachine gun. It was not disputed that a MAC10 was a firearm within item 12.
[44]
'Any of the following firearms ... unless the firearm:
[45]
(b) resembles in appearance a submachine gun, a machine pistol or a handgun that has a fully automatic firing capability.
[46]
[36] ... The [respondent's] case was that the breech bolt was imported as a part for his Cobray semi-automatic handgun, which he was licensed to possess under Queensland law. His case was that the Cobray was a handgun within item 9, and that the firearm part, being a part of or for a firearm to which item 9 applied, therefore fell within item 10. At the relevant time he had satisfied ... the police authorisation test in respect of the part ...
[47]
[37] That argument appears to be consistent with the evidence of the [appellant's] expert Mr Davies ... [who] conceded ... that a Cobray would appear to be '... a handgun'. This was subject to the qualification that the Cobray did not have a select lever, and therefore did not have a capacity for automatic fire. The significance of this qualification is not that it would cease to be a handgun if it had a select lever, but that it would cease to be a handgun within item 9 if it had a select lever. The effect of Mr Davies' evidence ... therefore appeared to be that a Cobray without a select lever was within item 9 ... . The [appellant's] case was .. that whether the breech bolt would also fit a Cobray handgun was irrelevant; so long as it was proved that it would fit a firearm within item 12, it fell within item 13.
[48]
[41] The effect of Mr Davies' evidence was that the breech bolt was capable of fitting the Cobray handgun. It was therefore a part 'for' such a handgun. If there was such a Cobray handgun which did not have a selector switch, it fell within item 9. By inference, such firearms exist. It follows that the breech bolt fell within item 10. ..."
[49]
[28] The District Court judge did not expressly find that the breech bolt was a firearm part of or for a firearm to which item 12 applied, though it is implicit in his Honour's reasons that he thought that to be the case, and that item 13 applied to it. There was clear and uncontradicted evidence to that effect. The respondent did not dispute the point, or contend that the part was not one to which item 13 applied.
[50]
"[42] ... It appears ... that Schedule 6, and in particular Part 2, has been drafted on the assumption that any particular thing can fall only within one particular item. It may well be that in the case of a firearm that will be true, because of the way in which the various items are framed. ... there is no reason in principle why something which falls within the definition of a firearm part could not be capable of fitting more than one firearm, and therefore capable of fitting firearms which themselves fall within different items in the Schedule. Relevantly, a particular part may fit, and therefore be a part for, both a firearm which fell within item 9 and a firearm which fell within item 12. Although item 12 is defined so as to exclude any firearm which falls within item 9, item 13 is not defined so as to exclude any part which falls within item 10. Nor does item 10 exclude any part which falls within item 13. There is no reason to interpret the schedule so as to read into the item any such exclusion."
[51]
[30] This construction of the Regulations was not challenged and it appears to be correct. If the one firearm part does fit (and is therefore a part of or for) firearms of differing kinds which are described in different items in the schedule the part itself will also be one to which more than one of the items apply. Whether or not such instances are rare the evidence in the present case leaves open the possibility, as the District Court judge found, that the breech bolt does fall within both items 10 and 13.
[52]
[31] It was common ground that Mr Powell did not have the necessary Col 3 compliance for an importation of the bolt, if it was an item 13 firearm part. He contended, as has been seen, that on the evidence the imported bolt was for a firearm within item 9; as a part for an item 9 firearm, the bolt came within item 10; if the importation of the bolt complied with "the Police authorisation test", it met the Col 3 requirements for item 10; Mr Powell was licensed to have an item 9 firearm in which he intended to use the imported bolt; it followed that he had complied with Col 3 in respect of item 10 and also with the Regulations so that the importation of the bolt was regular.
[53]
[32] The District Court judge considered that if a particular imported firearm part fell within more than one Schedule item, reg 4F(1) had the effect that as long as the requirements for importation in respect of one of those items were satisfied, the importation was not prohibited. Mr Powell's Cobray semi-automatic handgun was an item 9 firearm because it did not have a selector switch which could be used to convert such a gun to full automatic firing capability: it did not have "a fully automatic firing capability" and nor did it "resemble in appearance a submachine gun, a machine pistol or a handgun that has a fully automatic firing capability" (cf item 9, Col 2). Because Mr Powell was licensed under Queensland law to possess a Cobray semi-automatic handgun (an item 9 firearm), he met "the Police authorisation test" required for importation of a firearm part (the bolt) under item 10. The applicant established the bolt was also capable of being a firearm part for an item 12 firearm (a handgun with a selector switch so that it has a fully automatic firing capability or one that resembles such a handgun) and so fell within item 13 in respect of which Mr Powell did not meet the Col 3 requirements so that it was a prohibited import. The judge concluded, however, that because the imported bolt fell under item 10 where it complied with the Col 3 requirements ("the Police authorisation test"), the applicant had not established the bolt was a prohibited import under the Regulations. For that reason the judge did not order a retrial but instead ordered a verdict of acquittal.
[54]
[33] The conclusion that the breech bolt fell within item 10 was disputed by the appellant. A firearm falls within item 9 if it is a handgun which does not have a fully automatic firing capacity or a firearm which does not resemble in appearance a sub-machine gun, a machine pistol or a handgun that has a fully automatic firing capability. To the untutored eye the respondent's Cobray handgun does appear to resemble a machine pistol. This point of fact was not investigated at the trial and escaped the magistrate's attention. The judge thought it did not resemble a sub-machine gun or a machine pistol because it did not have a selector switch. We are not convinced this is the correct analysis, but leave to appeal from factual findings is not commonly given and in the end it is not necessary to pursue the matter, for reasons which will become apparent.
[55]
[34] The focus of debate in this court was whether the Cobray had or had not a selector lever which would allow it to fire in automatic or semi-automatic mode. The applicant contends the judge erred first in finding that if Mr Powell's Cobray firearm did not have a selector switch which could be used to convert it to fully automatic firing capability it fell within item 9 rather than item 12 so that the bolt fell within item 10 rather than item 13. The applicant also contended that the judge erred in holding that if the imported bolt was within both items 10 and 13 then it was not a prohibited import if the requirements of Col 3 of item 10 alone were satisfied.
[56]
[35] If the second contention is correct then it is unnecessary to determine the first which turns on factual findings. Regulation 4F(1) prohibits the importation of a firearm part unless the item "is an article to which an item in Pt 2 of Sch 6 applies" and the importation is in accordance with the requirements set out in Col 3 of the items. The Acts Interpretation Acts 23(b) provides that in any Commonwealth Act unless the contrary intention appears words in the singular include the plural. It follows that the effect of reg 4F(1) applied to the present factual situation is that the importation of a firearm part (the bolt) is prohibited unless the bolt is an article to which items in the Schedule apply and the importation is in accordance with the requirements set out in Col 3 of those items.
[57]
[36] The judge was satisfied that Mr Powell's Cobray firearm was within item 9. The Cobray firearm was not the imported item; the imported item was the bolt which was capable of fitting a firearm listed under both items 9 and 12. The imported bolt was therefore capable of inclusion in both items 10 and 13. The Customs Act and the Regulations are penal in nature but that does not require a conclusion that a firearm part (the bolt) declared to be a prohibited import within two Schedule items ceases to be a prohibited import if it complies with the requirements set out in Col 3 only in respect of one of those items. Such a conclusion is inconsistent with reg 4F(1) when read with s 23(b) Acts Interpretation Act. To conclude otherwise would mean that if Mr Powell imported the bolt it could be used in an item 12 firearm with a fully automatic firing capability when it is the clear intention of the legislature to protect the Australian public from such an importation unless the Col 3 requirements for item 13 are met. In our view the primary judge erred in construing reg 4F(1) otherwise.
[58]
[37] Despite the magistrate's failure to address the facts and to give reasons a retrial is unnecessary. The only fact in dispute is whether the Cobray handgun had a selector switch, or otherwise resembled a machine pistol. The determination of that fact would decide whether or not the Cobray fell within item 9. If the respondent succeeded on the point, so that the bolt was a part to which item 10 applied, the facts would remain as the District Court judge found. The critical point is that the part would be one to which item 13 also applied. No-one disputes that fact, and a retrial would not alter it. A retrial could only improve the applicant's position, not the respondent's. On the preferred construction of the Regulations the requirements for importing both items had to be satisfied before the importation was authorised. The respondent did not satisfy the requirements for importing an item 13 part. Leave to appeal should also be granted and the appeal allowed on this ground.
[59]
[38] It follows that there should be leave to appeal and the appeal should be allowed. We are not persuaded that leave to appeal should be subject to the applicant paying any of the respondent's costs of the appeal in which the respondent has been largely unsuccessful. Notwithstanding the failure of the magistrate to explain why he convicted the respondent the order in fact made was correct. The prosecution was properly commenced and the facts established that the respondent did not have authority to import the breech bolt which was a firearm part to which item 13 of the Regulations applied. It does not matter, as we have explained, that he did have authority to import a firearm part to which item 10 applied. The applicant did not ask for costs in the event he succeeded. The respondent, if so advised, can apply for a certificate under the Appeal Costs Fund Act 1973 (Qld) (cf Practice Direction No 1 of 2005, para 37).
[60]
The appeal is allowed.
The orders of the District Court made on 28 June 2006 are set aside.
Instead it is ordered that the appeal to that court be dismissed.