It is essential to the concept of smuggling that the revenue is entitled to something. It is also essential that it be proved that there was an intention to deprive the revenue of that to which it was entitled. That 'something', quite simply, is the duty payable on goods imported into the country, which, in turn, is assessed on the customs value of the goods. The question which arises, therefore, is whether the duty must have been calculated, or at least the customs value determined, before the charge of smuggling can be proved. The evasion charge raises an identical question."
48 The Court then considered the charge of evading payment of duty, and I will return to some of what was then said when I come to evasion of payment of duty in the present cases. The Court's conclusion expressed in relation to both smuggling goods and evasion of payment of duty was (at 265) -
"In order to be satisfied beyond reasonable doubt that the appellant had smuggled the goods or evaded payment of duty, it was necessary for the prosecution to prove that the value of the goods declared by the appellant on the entry, was not the value for the purposes of the assessment of duty. This it could only do, if it proved that the value of the goods for duty purposes was the transaction value of the vehicle and the transaction value was the purchase price from Mercedes-Benz. That determination, under the current form of s 159, is one which must be made by the Collector. There was no evidence that there was any such determination. Accordingly, we are of the opinion that, in this case, it was necessary for the prosecution to prove, the customs value of the goods."
49 In short, the Court considered that in order to prove an intention to deprive the revenue of that to which it was entitled, it was necessary to prove that the customs value stated by the importer was not the customs value determined by the Collector. A determination by the Collector, necessarily after the event since the offences were founded on any determination by the Collector at the time being of an incorrect amount, and proof of the (true) customs value established by that determination, were required.
50 I have difficulty with the Court's reasoning as to the offence of smuggling goods.
51 The Court appears to have been influenced by the proposition that a court will not lightly find an intention to defraud, but the standard of proof of an intention to defraud has no bearing on the ingredients of a charge involving intention to defraud. And, with respect, the citation from R v Australian Films Ltd (1921) 29 CLR 195 at 218 was taken out of context and not entirely accurate. The High Court said that "it was rightly decided in Stephens v Abrahams [(1902) 27 VLR 753; 27 ALT 233] that preventing something from getting into the revenue which the revenue is entitled to get amounts to defrauding the revenue". The point being made was that this sufficed to establish intent to defraud, not that proof of the revenue's entitlement was necessary for the offence. In Stephens v Abrahams (1902) 27 VLR 753 it was held that where the relevant goods were not dutiable at all there could not be an intention to defraud the revenue, but that does not mean that where goods are dutiable the duty payable must be proved - it may be enough to prove that the goods are dutiable.
52 The meaning of "defraud" taken by their Honours in Barendse v Comptroller-General of Customs was disapproved in Spies v The Queen (2000) 201 CLR 603, in which it was held (at 629-30) that a person may be defrauded without being deceived. It is not clear how the discussion of defrauding led their Honours to the conclusion that there must be an intention to deprive the revenue of that to which it was entitled, so that the entitlement must be proved, but defrauding encompasses depriving somebody of property to which he might be entitled (see Spies v The Queen at 630 citing Scott v Metropolitan Police Commissioners (1975) AC 819 at 839). While Gibbs J did refer in Balcombe v De Simoni to property being obtained, an ingredient of the offence was obtaining property. The reasoning in Barendse v Comptroller-General of Customs, with respect, is not persuasive.
53 In order to establish an intention to deprive the revenue of that to which it might be entitled, why was it necessary to prove that the customs value stated by the importer was not the customs value (afterwards) determined by the Collector? Why could not an entitlement to something, albeit an undetermined amount, and an intention to pay less than the something, be established in the manner described earlier in these reasons, without determination of the (true) customs value by the Collector? Differences between the stated customs value and the (true) customs value determined by the Collector would go to showing that the revenue had in fact been defrauded. Intention to defraud is another matter.
54 Further, as has been noted the penalty prescribed by the Act for the offence of smuggling goods is referable to the amount of the duty that would have been payable on the smuggled goods, if that amount can be determined by the court, or a pecuniary amount where the amount of the duty can not be determined by the court. The alternative where the amount of the duty can not be determined by the court suggests that proof of customs value is not necessary, because if customs value is proved the amount of the duty can be determined. A submission to this effect does not seem to have been made in Barendse v Comptroller-General of Customs. The penalty regime is general, applying to a number of offences, but all involve a variant of smuggling goods.
55 Barendse v Comptroller-General of Customs in relation to smuggling goods was cited by McDonald J in Chief Executive Officer of Customs v JMI trading Pty Ltd (2000) VSC 537. His Honour set out (at [22-3]) part of the discussion of what is meant by an intention to defraud the revenue. However, proof of customs value was not considered, and his Honour's decision turned on the innocence of the defendant's intention rather than the entitlement of the revenue. Counsels' researches did not find any other material citation of either Hansen v Comptroller-General of Customs or Barendse v Comptroller-General of Customs.
56 The respondent submitted that what was said in Barendse v Comptroller-General of Customs was obiter, because "the primary basis for upholding the appeal was the identification of an error by the trial judge in making findings of consciousness of guilt and a sham transaction by rejecting the sworn testimony of the appellant". That did not accurately reflect the Court's consideration of another of the questions submitted for determination. The Court concluded (at 265-6) that the evidence did not establish intent to defraud the revenue or evade duty, as distinct from intent to pay the lowest possible amount of duty, and so the other questions were not determinative in the commission of the offence. (Curiously, the Court answered in terms one of the other questions, but not the question bringing it to the conclusion last mentioned.) However, although the presently relevant question was not answered in terms, it was fully considered and what was said can not readily be categorised as obiter. In my opinion, the considered opinion of the Court should be accorded the fullest respect even if strictly so categorised.
57 It will be noted that their Honour's opinion in the concluding sentence of the passage last set out included the words "in this case". The respondent also submitted that in an earlier passage, when considering the charge of evading payment of duty but when speaking of all three offences, the Court recognised that there could be cases in which proof of customs value is not necessary. For the reasons given when I consider the charge of evading payment of duty, I do not think that is correct.
58 Thus the considered opinion of the Court in Barendse v Comptroller-General of Customs was that proof of customs value was necessary for a charge of smuggling goods. The determination of customs value was a matter for the Collector, and if the Collector had not made a determination then customs value was not proved; but beyond the essential role of the Collector, proof of customs value was necessary. For reasons I have given, I do not think Hansen v Comptroller-General of Customs is in conflict with the opinion. I nonetheless have the difficulty I have sought to explain with the reasoning of the Court, and but for what was said would hold that proof of the customs values of the BMW and the Mercedes was not necessary.
59 Certainly in the law at the one level of the judicial hierarchy is desirable, particularly in the law involving criminal offences and penalties. But, as Gleeson CJ observed in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99, it is important that a court give effect to the intention of Parliament, and if it concludes that an earlier decision construing a statute is erroneous "then the corollary is that to apply the earlier decision is to defeat the intention of Parliament". That applies to determining the requirements of a statutory offence.
60 In R v Maiden (2000) NSWCCA 519 Whealy J, with whom Sully and Howie JJ agreed, said (at [18]) -
"The principles which establish whether this Court will depart from previous decisions and re-examine earlier decisions are clearly expressed and well known. The Court has never regarded itself as bound by its previous decisions: Regina v Johns (1978) 2 NSWLR 259 at 262, 264. Unlike the Court of Appeal, this Court has no practice of requiring the grant of leave before an earlier decision may be re-examined. It has nevertheless departed from previous decisions only with caution; and only when it is satisfied that justice seemed to require the earlier decision to be overturned. Regina v Mai (1992) 26 NSWLR 371 at 380F-G; Regina v Arnold (1993) 30 NSWLR 73 at 85."
61 I respectfully agree with the comment in R v Arnold (1993) 30 NSWLR 73 at 85 that justice does not mean justice to any one party. Although what was said in Barendse v Comptroller-General of Customs may strictly have been obiter, I take the same approach to departure from it. I have concluded, with appropriate caution, that I should not follow what was said in Barendse v Comptroller-General of Custom. In the present cases I consider that for the offences of smuggling goods proof of the customs values was not necessary, and that justice requires departure from the earlier decision of this Court.