Chief Executive Officer of the Australian Customs Service v Karam

Court of Appeal (NSW)|2011-06-14|Before: Allsop P, Basten JA, McClellan CJ, McCallum J

Judgment 1ALLSOP P: I have read the reasons of McClellan CJ at CL. I agree with them. I agree with the orders proposed by his Honour. 2I have read the reasons of Basten JA. The arguments placed before the Court did not deal with a number of matters dealt with by his Honour. In circumstances where Mr Karam did not appear, and given the importance of the issues, I would prefer to deal with the issues on the basis of the arguments as put by the appellant. This should not be understood as an expression of views one way or another on the additional issues discussed by Basten JA. 3BASTEN JA: The respondent, Mr Dory Karam, was charged with a number of offences under the Customs Act 1901 (Cth). A number of charges brought against him and his brother, Mr Ronnie Karam, were found by McCallum J to be proved: Chief Executive Officer of the Australian Customs Service v Karam [2010] NSWSC 589. However, her Honour found two offences of evasion of duty, contrary to s 234(1)(a) of the Customs Act , not proved. The present appeal challenges the findings in respect of these offences.

Jurisdiction of this Court 4The proceedings in the Common Law Division constituted a "customs prosecution", being a proceeding for the recovery of a penalties under the Customs Act : Customs Act , s 244. They were commenced by the appellant in the Supreme Court pursuant to s 245. Proceedings by way of appeal are brought, either pursuant to s 248 of the Customs Act , or pursuant to the Judiciary Act 1903 (Cth), ss 68, 79 or 80, to a relevant State court, in the exercise of federal jurisdiction. This Court has held that, prosecutions being brought in accordance with the usual practice and procedure of the Supreme Court in civil cases, it is the civil appellate jurisdiction of this Court which is engaged: Customs Act , s 247 and Parker v Comptroller-General of Customs [2007] NSWCA 348 at [38]. 5This conclusion has two consequences: first, pursuant to s 101(2) of the Supreme Court Act 1970 (NSW) an appeal from an interlocutory judgment or order of the Court in a Division will lie only with leave of this Court. Secondly, the appeal in this Court will be an appeal by way of rehearing: Supreme Court Act , s 75A(5). 6The first question which arises is whether or not leave is required. The relief sought in the Court below, relevantly for present purposes, was identified in the statement of claim as follows: "4. In relation to the charge at paragraph 6 of the Statement of Claim, the First and Second Defendants: 4.1. each be convicted of the offence of evading payment of duty or attempting to evade payment of duty which was payable on 150,000 cigarette sticks, contrary to sections 234(1)(a) and 237 of the Act ; 4.2. pursuant to section 234(2)(a)(i) of the Act , each Defendant pay the Plaintiff a penalty not exceeding $182,572 and not less than $109,543 in respect of the offence referred to in order 4.1. 5. In relation to the charge at paragraph 7 of the Statement of Claim, the First and Second Defendants: 5.1. each be convicted of the offence of evading payment of duty or attempting to evade payment of duty which was payable on 12,926.20 kilograms of unmanufactured tobacco (leaf), contrary to sections 234(1)(a) and 237 of the Act ; 5.2. pursuant to section 234(2)(a)(i) of the Act , each Defendant pay the Plaintiff a penalty not exceeding $19,667,213 and not less than $7,866,885 in respect of the offence referred to in order 5.1." 7The respondent was the second defendant in the proceedings below. The appeal is only concerned with his liability. The charges identified in each of those paragraphs were as follows: "Offence of evade payment of duty under s 234(1)(a) of the Act 6. The Plaintiff charges that the First and Second Defendants did, on or about 2 August 2007 at Sydney in the State of New South Wales, evade or attempt to evade payment of duty payable with respect to 150,000 cigarette sticks each containing tobacco, contrary to ss 234(1)(a) and s 237 of the Act . Offence of evade payment of duty under s 234(1)(a) of the Act 7. The Plaintiff charges that the First and Second Defendants did, on or about 2 August 2007 at Sydney in the State of New South Wales, evade or attempt to evade payment of duty payable with respect to about 12,926.20 kilograms of unmanufactured tobacco (leaf), contrary to ss 234(1)(a) and s 237 of the Act ." 8The primary judge referred to these two charges, by reference to pars 6 and 7 of the statement of claim, at [141]. At the end of the section dealing with those two charges, her Honour concluded that the offences charged in "paragraphs 6 and 8 of the Statement of Claim are not proved": at [156]. This last reference appears to be a typographical error: the charge referred to in paragraph 8 involved making a false statement, a charge she found had been proved in the following section of her reasons: at [165]-[166]. That this is the proper understanding of her judgment is confirmed by the summary of findings in which each of the offences charged against the respondent was found to be proved except those charged in paragraphs 6 and 7. 9Her Honour did not proceed to conviction, nor to deal with penalty. Accordingly, the only relevant order, entered on 7 July 2010, was order 2, which stated: "(2) That, as against the second defendant, the Plaintiffs [sic] claim for relief at paragraphs 4 and 5 of the Statement of Claim be dismissed." 10Although this order finally disposed of two of the charges, it did not finally dispose of the proceedings. Further, if the appeal succeeds, as I agree that it should, it will be a matter for the primary judge to determine the outstanding issues. 11The proceedings having been heard without submissions from the respondent, it would not be appropriate to reach a final conclusion as to whether the appellant needs leave. The appropriate course is to deal with the appeal as presented, and grant the appellant leave to appeal, in so far as that is required.

Whether offences proved 12Although commenced by a civil process, the various elements of the charges must be established on the criminal standard of proof, that is beyond reasonable doubt: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; 216 CLR 161 at [2] (Gleeson CJ), [32] (Gummow J), [90] (Kirby J), [144] (Hayne J, McHugh J agreeing). The absence of the respondent does not relieve this Court of the need to be satisfied beyond reasonable doubt. That test may be satisfied where an appropriate finding has been made by the primary judge, which has not been challenged. However, it is necessary to be satisfied that the findings made are in appropriate terms. That requires consideration of the elements of the charge. 13The relevant elements of the offence under s 234(1)(a) are: (a) that an amount of duty is payable; (b) that it is payable by the defendant, and (c) the defendant has evaded (or attempted to evade) payment of that amount. There was no dispute that duty was payable. The appellant must satisfy the Court beyond reasonable doubt that the respondent was under an obligation to pay the duty and that he evaded payment, in the sense that he intentionally failed to make a payment in circumstances that made the omission blameworthy: see Bell J in Chief Executive Officer of Customs v Pham [2006] NSWSC 1011 at [39]. 14As further explained by Bell J in Pham , at [31]-[33], when goods are imported, the owner must enter the goods for one or other of the purposes identified in s 68(2), with the result that the relevant duty is calculated and becomes payable at a time prescribed by or under s 132AA. Those two provisions do not state explicitly by whom the duty is to be paid. However, s 153, (as then in force) provided for the recovery of duties in the following terms: " 153 Recovery of duties All duties shall constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector." 15Despite the title, the section has a dual, or indeed a triple, function. It states that the goods are charged with the debt constituted by the duty; provides that the duty is payable by the owner of the goods, and provides for its recovery in a court of competent jurisdiction. The section is not the worst of its kind, because each of the three functions is expressly identified: cf The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; 70 CLR 141 at 165-166 (Dixon J); James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 at [22]-[24] (Gaudron and Gummow JJ). The different functions are now more clearly identified in s 165(1) of the Customs Act , which replaced s 153 in 2008. It imposes on the "owner of the goods" an obligation to pay the duty. 16It was necessary that the respondent took steps to "evade" duty, a concept which involves both conduct, knowledge and purpose. Whether that element was satisfied appears not to have been finally resolved by her Honour, who left open a question as to the relevant intention. The concept of blameworthiness is derived from the judgment of Dixon J (with whom McTiernan and Webb JJ agreed) in Denver Chemical Manufacturing Company v Commission of Taxation (NSW) [1949] HCA 25; 79 CLR 296 at 313: "I think it is unwise to attempt to define the word 'evasion.' The context of s. 210(2) [of the Income Tax (Management) Act 1936 (NSW)] shows that it means more than avoid and also more than a mere withholding of information or the mere furnishing of misleading information. It is probably safe to say that some blameworthy act or omission on the part of the taxpayer or those for whom he is responsible is contemplated. An intention to withhold information lest the commissioner should consider the taxpayer liable to a greater extent than the taxpayer is prepared to concede, is conduct which if the result is to avoid tax would justify finding evasion." 17The primary judge was of the view that the relevant "fault element" was to be found in provisions in the Criminal Code (Cth), as applied to a customs prosecution by s 5AA of the Customs Act , which commenced in December 2001. Her Honour noted that the purpose of Chapter 2 was to codify the general principles of responsibility and that it contained "all the general principles" of responsibility that apply to any offence: Criminal Code , s 2.1, read with Customs Act , s 5AA(2)(c). Her Honour then reasoned that the relevant "fault element" was to be found in Part 2.2 of the Code , Division 5: at [146]. She then turned to s 5.6 which provides: " 5.6 Offences that do not specify fault elements (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element." 18The primary judge dealt with admirable brevity with what could have been an exercise in metaphysical abstraction. But it is by no means clear that the word "evade" does not include both a physical element (conduct) and a fault element (a state of mind). Similarly, if the physical element is evading payment of duty, it is at least arguable that this element involves both conduct and a circumstance or result: if s 5.6 applies, it is necessary to decide which. With respect, her Honour's conclusion that "intention" is the fault element for a physical element "consisting of failure to pay duty which is payable" avoids a number of questions, which it would be necessary to address if there were a jury. Whether or not her Honour's approach would have resulted in a lesser test than that applicable under the general law is not clear, as her Honour rejected the charges on a different basis, namely that the duty was not payable by the respondent. If this Court is to reach the conclusion, as proposed by the appellant, that the relevant charges under s 234(1)(a) were proved as against the respondent, it is necessary to address and determine these questions. 19The point addressed in Denver Chemical by Dixon J was that the concept of "evasion" connoted more than the step of withholding information: it required a state of mind, namely that the information could potentially give rise to a tax liability, and an intention or purpose, namely to avoid such a liability. To abandon that understanding of the term "evasion" is to effect a change in the nature of the offence; that, s 5AA(3) makes clear, is not an operation which can be given by the application of the Criminal Code to a customs prosecution. Consistently with that approach, the provisions of the Criminal Code with respect to "fault elements" only apply where the offence itself does not "specify a fault element". Where the language of the offence incorporates one or more elements of a mental state, it can properly be said to "specify" such elements. Accordingly, s 5.6 of the Code is not, in its own terms, engaged. It is therefore not necessary to consider the distinction which it incorporates between "a state of affairs" (which falls within the definition of "conduct" in s 4.1(2)) and a result of conduct or a circumstance in which conduct occurs: cf R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135 at [58] (Bell J, Woods CJ at CL and Simpson J agreeing); The Queen v Tang [2008] HCA 39; 237 CLR 1 at [46]-[47] (Gleeson CJ). 20The appellant's case was that the factual findings made by the primary judge in respect of the smuggling offence satisfied both the physical and fault elements in respect of the evasion offence, subject only to the additional question of liability to payment of duty. Thus, at [117], her Honour expressed her satisfaction beyond reasonable doubt that the respondent "meant to import the cigarettes and the tobacco ... [and] meant to defraud the revenue". Her Honour was also satisfied that the respondent did import the container in which the tobacco and cigarettes were concealed: at [112]. Those submissions are accepted. 21The remaining issue is whether the respondent was an "owner" of the goods (the cigarettes and tobacco) and hence liable to pay duty. 22The smuggling offence involved importation "with intent to defraud the revenue": s 233(1)(b) and s 4(1) Smuggling . Her Honour's conclusion that the duty was not payable by the respondent necessarily implied that it was payable by another person, being the "owner". Her Honour accepted that that description applied to the company "that in fact meant to import the container": at [154]. With respect to the charges of evasion, she noted that none of the parties had addressed her on this issue, but then set out the definition of owner in s 4 of the Customs Act , which provides: " Owner in respect of goods includes any person (other than an officer of Customs) being or holding himself or herself out to be the owner, importer, exporter, consignee, agent, or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods." 23Precisely how her Honour construed this definition is unclear. The definition purports to be inclusive, rather than comprehensive, but nothing turns on that for present purposes. The very breadth of the provision is illustrated by the initial recognition that a customs officer, no doubt exercising powers under the Customs Act , may fall within it. The bulk of the provision identifies persons by classifying their relationship with the goods. That element is broadened, by encompassing not only those persons who have a particular relationship with the goods ("being") but those who hold themselves out to have such a relationship. 24Some of the terms used have more specific meanings than others; the terms are by no means each entirely separate from the others. However, it is not necessary for present purposes to go beyond the term "importer". In respect of the smuggling offences with respect to the same goods, her Honour identified the physical element as "the importation of the goods": at [108]. She then stated in respect of the respondent (and his brother) "that he imported the container" and that the physical element was satisfied: at [112]. That being so, the definition of owner was satisfied. Her Honour's conclusion that it was not was erroneous. That conclusion did not depend upon the absence of any relevant fact, nor a failure to be satisfied beyond reasonable doubt as to any particular fact. It seems to have resulted from a failure to realise the relevance of a finding already made in respect of the definition of "owner".

Conclusions 25It follows that the appellant is entitled to have the second order noted above set aside. In other words, the claims for relief in respect of paragraphs 4 and 5 of the statement of claim, dealing with the evasion offences, remain for final determination. 26It is not usual in the course of a proceeding potentially resulting in a conviction and the imposition of a penalty to make a declaration that an offence has been proved. Nevertheless, the appellant sought an "order or declaration" as to the offences. Orders as such are not appropriate, but a declaration should be made in the present circumstances. Where this Court sets aside an order made below, on a particular basis, with the result that the matter will proceed further before the primary judge, it is appropriate that the conclusion reached, which has adverse consequences for the respondent should be reflected in a declaration, rather than requiring that the outcome and the future consequences be derived from the reasons given by members of the Court. 27In respect of the extension of time, although the notice of intention to appeal was filed only a day late, the preferable course may be to extend the period within which to file a notice of appeal, rather than, as it were, retrospectively validate the notice of intention, which was either given or not given in time and has served its purpose. The only effect of the notice of intention to appeal was to extend the period within which an appeal should be lodged from 28 days to three months: Uniform Civil Procedure Rules 2005 (NSW), rr 51.9 and 51.16. The preferable course is to extend the operative date, which means extending the date within which the notice of appeal was to be filed and served until 20 September 2010. 28Subject to what has been said above, and with one qualification, the orders proposed by McClellan CJ at CL should be made, together with the proposed declarations. The qualification is that there is no need to grant leave to file the notice of motion: that was done in the course of the hearing: Tcpt, 14/06/11, p 7(10). 29In my view the following orders should be made: (1) Extend the time within which the notice of appeal was to be filed and served until 20 September 2010. (2) To the extent necessary, grant the appellant leave to appeal. (3) Set aside order 2 in the short minutes of order made by consent on 1 July 2010. (4) Declare that the respondent did, on or about 2 August 2007 at Sydney in the State of New South Wales, evade or attempt to evade payment of duty payable with respect to 150,000 cigarette sticks each containing tobacco, contrary to ss 234(1)(a) and 237 of the Customs Act 1901 (Cth). (5) Declare that the respondent did, on or about 2 August 2007 at Sydney in the State of New South Wales, evade or attempt to evade payment of duty payable with respect to about 12,926.20 kilograms of unmanufactured tobacco (leaf), contrary to ss 234(1)(a) and 237 of the Customs Act 1901 (Cth). (6) Remit the proceedings to McCallum J to determine the questions of conviction and penalty. (7) Order that the respondent pay the appellant's costs of the appeal, other than with respect to the extension of time. 30McCLELLAN CJ at CL: The respondent was prosecuted in the Supreme Court for a number of offences against the Customs Act 1901 (Cth) ("the Act"). Although he was convicted of some of the charges, the trial judge found that the appellant had failed to prove an alleged breach of s 234(1)(a) of the Act. The appellant appeals from that decision. The respondent did not appear when the matter was called for hearing. 31The appellant filed a Notice of Intention to Appeal with the court on 29 July 2010 but it was not served until 30 July 2010. As the orders of the trial judge were made on 1 July 2010 the Notice of Appeal was served out of time by one day (UCPR rule 51.16(1)(c)). 32The appellant asks to be relieved of this breach of the rules and to that end was granted leave to file a Notice of Motion in court seeking the appropriate extension of time to serve the Notice of Intention to Appeal. 33I am satisfied that the extension should be granted. As I have indicated the Notice of Intention to Appeal was filed only one day out of time but, perhaps of greater significance is the fact that on 14 June 2011 the solicitor who had acted for the respondent during the trial appeared before the Registrar of this Court. No complaint was made about the appeal being commenced out of time. Although he has not appeared today there can be no doubt that the respondent was aware of the proceedings and would have suffered no inconvenience by reason of the late service of the Notice of Intention to Appeal. However, I agree with Basten JA that the preferable course may be to extend the date within which the notice of appeal was to be filed and served until 20 September 2010. 34Basten JA has also suggested that leave to appeal may have been required. Although I am satisfied that the relevant orders made by her Honour were final orders I am content to join in orders granting the appellant leave to appeal if that is required. 35It is sufficient to provide only a summary of the events relevant to this appeal. 36The respondent and his brother Ronnie Charles Karam were charged with a number of offences against the Act arising from the importation into Australia of a forty-foot "High Cube" sea cargo container ostensibly containing only 8,800 pairs of shoes. In fact the container had within it 150,000 cigarette sticks and 12,926.20 kilograms of unmanufactured (leaf) tobacco that had not been stemmed or stripped ("goods"). The goods were not declared to Customs. 37Customs duty was paid on the declared value of the shoes but no duty was paid on the goods. The duty payable in respect of the goods was $36,514.50 on the cigarettes and $3,933,442.66 on the unmanufactured tobacco. 38The appellant brought a prosecution under Part XIV of the Act seeking that the respondent and his brother be convicted for smuggling or attempting to smuggle goods contrary to s 233(1)(a) and 237 of the Act, convicted of the offence of importing prohibited imports or attempting to import prohibited imports contrary to s 233(1)(b) and s 237 of the Act, convicted of evading payment of duty or attempting to evade payment of duty contrary to s 234(1)(a) and s 237 of the Act and making a false statement contrary to s 234(1)(d)(i) of the Act. The appellant also sought to recover significant penalties. 39The proceedings were defended. The trial judge found proved the offences of smuggling goods contrary to s 233(1)(a) of the Act, importing prohibited goods contrary to s 233(1)(b) of the Act and making a false statement contrary to s 234(1)(d)(i) of the Act. 40However, her Honour dismissed the charge against the respondent in relation to the evasion of duty contrary to s 234(1)(a) of the Act. The trial judge concluded that she was not satisfied beyond reasonable doubt that the respondent was the "owner" of the goods and for that reason dismissed that charge. 41Section 234(1)(a) of the Act provides that a person shall not evade payment of any duty which is payable. It is in the following terms: " 1) A person shall not: (a) Evade payment of any duty which is payable; (b) Obtain any drawback, refund, rebate or remission which is not payable; (d) do any of the following: (i) intentionally make or cause to be made a statement to an officer, reckless as to the fact that the statement is false or misleading in a material particular; (ii) intentionally omit or cause to be omitted from a statement made to an officer any matter or thing, reckless as to the fact that without the matter or thing the statement is misleading in a material particular; (iii) intentionally give information to another person, knowing that the information is false or misleading in a material particular and that the other person or someone else will include the information in a statement to an officer; (iv) intentionally give information to another person, knowing that the information is misleading in a material particular because of the omission of other information that the person has and that the other person or someone else will include the information in a statement to an officer; (h) Sell or offer for sale, any goods upon the pretence that such goods are prohibited imports or smuggled goods. 42Section 165(1)(b) presently controls the recovery of duties. However, at the time of the importation of the goods recovery was controlled by s 153 of the Act. That section was in the following terms: "153 Recovery of duties. All duties shall constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector." 43Section 4(1) of the Act defines "owner" in the following terms: "'Owner' in respect of goods, includes any person (other than an officer of Customs) being or holding himself or herself out to be the owner, importer, exporter, consignee, agent or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods." 44The appellant submitted that the trial judge's lack of satisfaction that the respondent was the owner of the goods was at odds with her Honour's findings in relation to the smuggling offence. With respect to that offence the trial judge found that, having regard to the admission made in the defence filed in the proceedings to the effect that it was the respondent who imported the container in which the goods were concealed, her Honour was satisfied that the respondent had imported the goods. Her Honour also found that she was satisfied that the respondent "meant to import the cigarettes and the tobacco." Furthermore, her Honour found that she was satisfied that the respondent was aware that the container contained tobacco and that he meant to facilitate its importation. The relevant findings are contained in [112] to [117] of her Honour's reasons for judgment which are as follows: "112. On the strength of the contents of the defence filed in the proceedings and the admission of each defendant that he imported the container in which the tobacco and the cigarettes were concealed, I am satisfied beyond reasonable doubt as to the first physical element of each of the two smuggling offences. 113. The second physical element of defrauding the revenue is established by paragraphs 40, 41 and 60 to 63 of the statement of facts (Exhibit B). Accordingly, as to each smuggling offence, I am satisfied of that element beyond reasonable doubt. 114. Proof of the fault elements rests on a circumstantial case. As noted by Bell J in Pham at [95], it is not necessary in such a case for the Court to be satisfied beyond reasonable doubt in respect of each circumstance, "but rather that the circumstances when viewed together admit of no rational explanation other than guilt: Shepherd v R [1990] HCA 56; (1990) 170 CLR 573. 115. In view of the time it has taken to complete this judgment, I have taken care to review the evidence adduced on behalf of the defendants in detail so as to ensure that my conclusions accord with the impressions I formed at the time of the hearing. 116. I am also mindful of the submissions put on behalf of the defendants that the CEO might have taken further steps to investigate the involvement of Mr Cheikho from the outset and that, as a result, forensic opportunities may have been lost. Mr Cheikho's guilt of any offence is not, however, inconsistent with the case brought by the CEO. 117. I am satisfied beyond reasonable doubt that Dory Karam meant to import the cigarettes and the tobacco. I am also satisfied beyond reasonable doubt that he meant to defraud the revenue ." 45Her Honour's reasons for dismissing the relevant charges are contained within [151] to [156] of the reasons for judgment. They are as follows: "151 It is clear enough that duty is payable under the Customs Act by the owner of the goods: see s 165 of the Act. It is not clear to me, however, whether duty is ever payable by any person other than the owner. 152 The term "owner" is defined as follows: "Owner" in respect of goods includes any person (other than an officer of Customs) being or holding himself or herself out to be the owner, importer, exporter, consignee, agent, or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods". 153 Without having had the assistance of any submissions on this issue, I do not think that either of the defendants was or relevantly held himself out to be in any of those roles in respect of the cigarettes and the tobacco. 154 The "owner" of the goods identified in the Nature 10 Declaration was "Drovers Footwear". I am prepared to accept that that description was apt to identify the company that in fact meant to import the container, Drovers International Pty Ltd. Although Ronnie Karam was the sole director and principal of that company, it would not follow that he was personally liable to pay the duty payable on goods imported by it. As to Dory Karam, he was no more than an employee of the company. 155 In any event, the goods on which duty was in fact payable were the cigarettes and the tobacco. The evidence does not satisfy me that either defendant was an owner of those goods within the meaning of the Act. 156 Accordingly, I am not satisfied beyond reasonable doubt as to the first physical element of those offence as against either defendant. It follows that the offences charged against each defendant in paragraphs 6 and 8 of the Statement of Claim are not proved. " 46Her Honour's remarks at [153] that she did not have the benefit of the submissions in relation to the issue of ownership. It was no doubt for this reason that her Honour's attention was not drawn to the relationship between the elements of the definition of owner and the factual findings which could be made and which her Honour did make in relation to the charge of smuggling. If her Honour had had the benefit of submissions her attention would no doubt have been drawn to the fact that the definition extends the concept of owner beyond that which the law would ordinarily provide. 47It is clear from her Honour's findings, which do depend in part upon admissions that were made by the respondent, that he imported the container meaning to import the cigarettes and tobacco that were contained within it. The consequence must be beyond any doubt that he was the importer of the goods for the purpose of the definition of owner. The importer of goods will be the person who makes arrangements for them to come into the country, although they actually come on a ship or other conveyance under the control of another person. 48The respondent was also a person who had control over the goods. The definition of owner incorporates the concept of control in terms of "any control". The relevant person's connection to the goods must not be ephemeral but there can be no doubt, given her Honour's findings, that the respondent had control over the goods in that he arranged for their importation. 49It is apparent from the reach of the definition of owner in s 4(1) of the Act that the Parliament intended to make persons who the law would not otherwise consider to be the owner of goods liable to pay duty if they are the importer of those goods. The definition extends to the importer of goods whether or not they are also the legal owner. In the present circumstances it matters not whether Drovers International Pty Ltd was the "true owner" of the goods. For the purposes of the definition the respondent was the owner within the meaning of the Customs Act. 50I am of the opinion that the following orders should be made:

Extend the time within which the notice of appeal was to be filed and served until 20 September 2010.
Grant leave to appeal.
Allow the appeal.
Set aside order 2 made by the court below.
Remit the matter to McCallum J to determine the questions of conviction in accordance with these reasons and otherwise deal with the matter of penalty.
Order the respondent to pay the appellant's costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2011

Criminal Code (Cth), Supreme Court Act 1970(NSW)

Income Tax (Management) Act 1936(NSW)

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