Chief Executive Officer of Customs By Ross Alfred Blackall, His Duly Authorised Delegate v Mak & Anor [2002] WASC 235

Chief Executive Officer of Customs By Ross Alfred Blackall, His Duly Authorised Delegate v Mak & Anor [2002] WASC 235 - WASC 2002 case summary — Zoe

[12]

3 The resort to the civil jurisdiction of the court for the determination of issues involving the guilt or innocence of a person charged with a statutory offence and the imposition of statutory penalties, gives rise to the need to characterise the nature of the proceedings which the court is to determine, or perhaps more accurately, to ascertain whether the criminal or civil onus of proof and standard of proof apply. There is a line of established authority to the effect that these are civil proceedings, notwithstanding those substantial criminal overtones, and that the civil standard of proof applies. These authorities also decide that there is an onus of proof on a defendant to refute the allegations advanced against him or her and also that the defendant shall be a compellable witness, but these are matters which follow directly from the terms of s 255 and s 254 of the Act rather than as a consequence of a classification of the proceedings as criminal or civil or from the application of the civil rules of practice required by s 247. In this State this line of authority has been consistently applied and such prosecutions have been treated as being civil in nature with the civil standard of proof applying - Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 140 ALR 681 (Full Court); and Chief Executive Officer of Customs v Tonmill Pty Ltd [2001] WASC 77 per Hasluck J at [14]. In Chief Executive Officer of Customs by his Duly Authorised Delegate Malcolm Ross Plant v Owens International Freight (Australia) Pty Ltd [2002] WASC 128 per Scott J, the issue was directly addressed and the proceedings were categorised as being civil in nature with the civil standard of proof applying. Other examples, where the civil procedure has been applied without objection or controversy in this State, are provided by the decisions in Goulding v Penello [1999] WASC 192; Chief Executive Officer of Customs v Pavlovich [2001] WASC 173 and Chief Executive Officer of Customs by his Delegate Robert William Scarfe v Coflexip Stena Offshore International SA [2001] WASC 346.

[13]

4 This approach is also in accordance with other long established Australian authority, including Minister for Business and Consumer Affairs v Evans (1982) 70 FLR 56; Evans v Button (1988) 13 NSWLR 57 (CA); Comptroller-General of Customs v Jayakoda, unreported; SCt of Victoria; 9 November 1993 (per Byrne J). Against this line of authority stands the decision of the Queensland Court of Appeal in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2001] QCA 280; (2001) 162 FLR 230. In that case the Court of Appeal comprising McMurdo P, Thomas JA and Byrne J concluded that such proceedings were criminal in nature and that the criminal standard of proof applied, although McMurdo P dissented on the associated issue of whether or not the proceedings were criminal insofar as the application of the Evidence Act (1997) (Qld) applied. This decision was reached after a long analysis of the authorities dealing with Crown suits involving revenue prosecutions originating in the Court of Exchequer and by following and applying the decision in Murphy v KRM Holdings Pty Ltd [1985] FCA 495; (1985) 8 FCR 349 where Pincus and Beaumont JJ held that proceedings for breaches of s 234(1) of the Customs Act were criminal in nature. I note that special leave to appeal from the decision of the Queensland Court of Appeal in Chief Executive Officer of Customs v Labrador Liquor Wholesale (supra) was granted by the High Court of Australia as recently as 26 June last, and it is therefore to be expected that this controversy will be authoritatively resolved before long. Fortunately, except for one minor issue which I shall address later, this does not have any significant application to these proceedings in the light of the admissions which have been made by the first defendant and the agreement which has been reached for the disposition of the litigation between the parties. These render it unnecessary to resolve any controversies about the guilt or liability of the parties or, in doing so, to determine what standard of proof applies.

[25]

9 The first defendant was born in Hong Kong in 1971 and, therefore, is now aged 31 years. She was aged 26 to 29 during the period October 1997 to March 2000 when these offences were committed. The first defendant migrated to Australia and married the second defendant in August 1996. At sometime shortly after their marriage a business was established in their joint names under the name "Auto Boutique". This was conducted from a small shop in Carillion Arcade in the central Perth business district from which were retailed a variety of automotive accessories, soft furnishings and fittings for use in motor vehicles. It is not disputed that the second defendant established this business to allow his wife, the first defendant, to have an occupation and an interest and that it was predominantly operated by her. The business began trading in November 1997. The plan was to import items for sale from Hong Kong and orders were placed through one principal supplier in Hong Kong for goods to be despatched to Western Australia. Between 10 October 1997 and 3 March 2000 there were 21 separate shipments of automotive accessories from Hong Kong to Perth for use in the business. On each arrival of the goods in Western Australia the first defendant, via a firm of customs brokers, lodged a form with the Australian Customs Service which contained details of each shipment, including its date, invoice price paid for the purchase of the goods (in Hong Kong dollars), the customs value of the goods on arrival in Australia (in Australian dollars), and the duty payable calculated in accordance with that information. These are known as "Nature 10 Entry for Home Consumption" ("the Nature 10's"). Further, between about 5 August 1998 and 3 March 2000, the first defendant imported a series of automotive accessories into Australia in separate consignments by post. There were seven of these postal importations and, in respect of each one of them, the first defendant completed an Informal Clearance Document ("ICD") which was delivered to a Customs Officer. Each of these ICD's contained information giving the invoice price for the goods purchased in Hong Kong (in Hong Kong dollars), the declared Customs value of the goods at the date of importation into Australia (in Australian dollars) and the duty payable in Australia in accordance with those figures.

[42]

19 In relation to the offences of evading payment of duty contrary to s 234(1)(a) of the Customs Act, the penalty provided by s 234(2)(A) is a penalty not exceeding five times the amount of that duty and not less than two times that amount. Accordingly, the penalties which are to be imposed range from the minimum of twice the duty evaded to a maximum of five times the duty evaded. Counsel for the plaintiff submitted that the penalty was not less than two times nor more than five times the duty payable on the goods rather than the duty evaded, in this case between twice and five times the amount of $15,204.82 rather than similar multiples of the duty avoided of $10,914.62, but counsel for the first defendant submitted that the penalty related to the duty actually evaded. The answer to this controversy appears to me to be provided by s 234 itself when imposing a penalty for evading payment of any duty which is payable. Section 234(1)(a) imposes a penalty, in relation to a case where a court can determine the amount of the duty on goods, the payment of which would have been evaded by the commission of the offence. Section 234(2)(a)(i) refers to the penalty not exceeding five times and being not less than two times "the amount of that duty". Admittedly, there is some ambiguity in whether the penalty relates to a multiple of the duty payable or a multiple of the duty evaded, but it seems to me that the preferable interpretation is to treat the amount of duty evaded as being the basis for the computation of the penalty. Not only do I prefer this as the grammatical meaning of the section but this approach appears to me to observe the established convention that, in determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject - The King v Adams [1935] HCA 62; (1935) 53 CLR 563 at 567 - 568; Smith v Corrective Services Commissioner (1981) 147 CLR 124 at 139; Piper v Corrective Services Commissioner of NSW (1986) 6 NSWLR 352 and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (53 paragraphs)

Chief Executive Officer of Customs By Ross Alfred Blackall, His Duly Authorised Delegate v Mak & Anor [2002] WASC 235 (9 October 2002)

Parties

Legislation Cited (1)

Cases Cited (12)