Gill & Anor v The Chief Executive Officer of Customs

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 97/12/0973. 97/12/074 LOWER COURT JUDICIAL Dalgleish ADCJ OFFICER :

COUNSEL : I Lawry - Appellants P S Hastings QC/ D J Fagan SC - Respondent SOLICITORS : R J Benson, Woronora - Appellants Australian Government Solicitor - Respondent CATCHWORDS : CUSTOMS OFFENCES - smuggling, evading payment of duty and making a false statement - whether prosecution must prove the customs value of the imported goods. D Barendse v Comptroller-General of Customs (1996) 136 FLR 243; Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Cendak v Crawford (1986) 86 FLR 190; Gallagher v Cendak (1988) VR 731; Hansen v Comptroller-General of Customs (1996) 130 FLR 72; CASES CITED: Minister for Immigration, Local Government and Ethnic Affairs v Della Crus (1992) 34 FCR 348; R v Australian Films Ltd (1921) 29 CLR 195; R v Maiden (2000) NSWCCA 519; Scott v Metropolitan Police Commissioners (1975) AC 819; Spies v The Queen (2000) 201 CLR 603; Stephens v Abrahams (1902) 27 vr 753; 27 alt 233; DECISION : (1) Determine the question of law no as to the charges of smuggling goods and cognate accessory charges but yes as to the charges of evading payment of duty, attempting to evade payment of duty and making false statements and cognate accessory charges. (2) Remit the proceedings to the District Court for further consideration in accordance with this determination. (3) Make no order as to the costs of the proceedings in this Court.

IN THE COURT OF CRIMINAL APPEAL CCA 60375/01 DC 97/12/0973 & 97/12/0974 GILES JA HOWIE J CARRUTHERS AJ

GILL & ANOR v THE CHIEF EXECUTIVE OFFICER OF CUSTOMS

Judgment 1 GILES JA: The applicants, Mr Parambir Gill and Ms Tahnya Butterfield, were each charged with six offences against provisions of the Customs Act 1901 (C'th) ("the Act"). The Magistrate before whom they were tried was satisfied that the charges were proved. The applicants were each convicted on one of the charges against him or her and discharged without proceeding to conviction, pursuant to s 19B of the Crimes Act 1914 (C'th), in respect of the other five charges. 2 The applicants appealed to the District Court pursuant to s 122 of the Justices Act 1902 (NSW). Dalgleish ADCJ was also satisfied that the charges were proved. Again the applicants were each convicted on one of the charges against him or her and discharged without proceeding to conviction in respect of the other five charges. On the charges on which they were convicted they were each ordered to pay a penalty of $3,000, and they were ordered to pay substantial costs. 3 At the request of the applicants, pursuant to s 5B of the Criminal Appeal Act 1912 Dalgleish ADCJ submitted a question of law to this Court for determination. His Honour declined to submit what the applicants asserted were further questions of law. Before this Court the applicants sought also to raise one of the further questions for determination.

The charges 4 The provisions of the Act creating the offences with which the applicants were charged are s 233(1)(a), s 234(1)(a) and s 234(1)(d)(i), plus s 236 as to accessory liability and s 237 as to attempts. 5 Section 233(1)(a) provides that a person shall not "smuggle any goods". By the definition in s 4(1) of the Act, "smuggling" means any importation, introduction or exportation or attempted importation, introduction or exportation of goods with intent to defraud the revenue. By s 233(1AA) the punishment for an offence against s 233(1)(a) is as provided by s 233AB(1), being a penalty 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 penalty not exceeding $100,000 where the amount of the duty can not be determined by the court. 6 Section 234(1)(a) provides that a person shall not "evade payment of any duty which is payable". The penalty regime pursuant to s 234(2) is the same, save that the maximum penalty where the amount of the duty can not be determined is $50,000. 7 Section 234(1)(d)(i) provides that a person shall not "knowingly or recklessly … make a statement to an officer that is false or misleading in a material particular". The penalty regime is as for s 234(1)(a). 8 Section 236 provides that whoever aids, abets, counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against the Act shall be deemed to have committed such offence and shall be punishable accordingly. 9 Section 237 provides that any attempt to commit an offence against the Act shall be an offence against the Act punishable as if the offence had been committed. 10 The charges related to the importation by Mr Gill of a BMW 320i motor vehicle ("the BMW") and the importation by Ms Butterfield of a Mercedes Benz 230 CE motor vehicle ("the Mercedes Benz"). Both importations were in November 1992. Mr Gill was charged as principal with smuggling goods (s 233(1)(a)), evading payment of duty (s 234(1)(a)) and making a false statement (s 234(1)(d)) in relation to the BMW, and with being directly concerned in the commission of the offences by Ms Butterfield (s 236) in relation to the Mercedes Benz. Ms Butterfield was charged as principal with smuggling goods (s 233(1)(a)), attempting to evade payment of duty (s 234(1)(a), s 237) and making a false statement (s 234(1)(d)) in relation to the Mercedes Benz, and with being directly concerned in the commission of the offences by Mr Gill (s 236) in relation to the BMW. 11 The charges of smuggling goods were in the terms that Mr Gill or Ms Butterfield "on or about 21 November 1992, at Sydney in New South Wales, smuggled goods, namely [the BMW or the Mercedes Benz]". 12 The charge of evading payment of duty against Mr Gill was in the terms that he "on or about 19 November 1992, at Sydney in New South Wales, evaded payment of Customs duty of no less than $3,358.94 that was payable in respect of [the BMW]". The charge concerning evasion of payment of duty against Ms Butterfield was in the terms that she "on or about 24 November, 1992, at Sydney in New South Wales, attempted to evade payment of Customs duty of no less than $8,852.89 that was payable in respect of [the Mercedes Benz]". 13 The charge of making a false statement against Mr Gill was in the terms that he "on or about 19 November, 1992, at Sydney in New South Wales, knowingly or recklessly made a statement to an officer that was false in a material particular, WHEN in an Entry for Home Consumption No 1523248026E completed, signed and produced to Customs by the defendant, the defendant stated that the Customs value of the goods, [the BMW] was $18,839.05 when the true customs value was a figure in excess of that stated". The charge of making a false statement against Ms Butterfield was in the same terms, save that the date was 24 November 1992, a different entry for home consumption was identified, and the motor vehicle was the Mercedes Benz. 14 The charges of being directly concerned in the commission of each other's offences reflected the principal charges, and took a form illustrated by the charge against Mr Gill that he "was directly concerned in the commission of an offence by [Ms Butterfield} who on or about 21 November 1992, at Sydney in New South Wales, smuggled goods, namely [the Mercedes Benz]". 15 In each case the charge in the information was followed by the statement that "the prosecutor avers these facts and also that … ", with an account in numbered paragraphs of what was alleged to have occurred in relation to the importation of the motor vehicle. The Act provides in s 255(1) that the averment of the prosecutor in the information shall be prima facie evidence of the matter or matters averred, save that by s 255(4) this does not apply to an averment of the intent of the defendant or to proceedings for an indictable offence or an offence directly punishable by imprisonment. The respondent expressly disclaimed any reliance on s 255(1) which might have been available in proof of the charges against Mr Gill and Ms Butterfield. 16 Each of Mr Gill and Ms Butterfield was convicted on the charge of smuggling goods, the other charges resulting in the discharges without proceeding to conviction.

Facts 17 The facts as found by Dalgleish ADCJ set out in the stated case went into some detail. By consent, they were supplemented to some extent from the evidence before his Honour. The following is sufficient for present purposes. 18 In May 1991 Mr Gill ordered the BMW from the manufacturer for delivery in Munich. He purported to interpose a Ms Ulens as its purchaser. Physical delivery was taken by Ms Butterfield. Mr Gill then purported to purchase the BMW from a Swiss company to which Ms Ulens was said to have sold it or with which she was said to have placed it for sale. 19 Mr Gill signed a Customs entry form on 19 November 1992 declaring a customs value for the BMW of $18,839.05. In an accompanying form, which he also signed as containing statements and answers which were true and correct in every particular and from the information in which the customs value was derived, he said that he purchased the motor vehicle from the Swiss company on 28 October 1991 for 21,000 Swiss francs, in Australian currency approximately $23,855. (This is the figure in the stated case; it must be wrong.) The customs value was based on the declared purchase price less a deduction for depreciation, and although the calculation of the customs value is suspect it was not questioned in the appeal. The purported purchase price was considerably less than the purchase price from the manufacturer, in Australian currency approximately $36,000. The total duty as calculated in the form at the applicable percentages was $11,171.54. 20 Dalgleish ADCJ found that Ms Ulens was a mock purchaser and the transaction involving the Swiss company was a sham; that from when he placed the purchase order with the manufacturer it was Mr Gill's intention to import the motor vehicle into Australia as owner; and that - "(f) The only purchase of the BMW was ex factory Munich on 22 July 1991. Mr Gill in signing the Customs entry form on 19 November 1992 intended to supply Customs with the purported sale figure of the sham transaction that was substantially lower than the actual purchase price, knowing that the sale figure would be used by Customs to work out the amount of duty payable to Customs and this was done with the intention to deprive Customs of the duty payable on the actual purchase price.

(g) By the same reasoning in the preceding paragraph Mr Gill intended to defraud the Customs of the appropriate revenue and that he knowingly made a false statement to Customs." 21 In May 1991 Mr Gill ordered the Mercedes Benz from the manufacturer purportedly for a Ms Arnold. Physical delivery was taken by Ms Arnold. The motor vehicle was purportedly sold by a written sale contract by Ms Arnold to Ms Butterfield as a vehicle which had travelled almost 30,000 kilometres. 22 Ms Butterfield signed a Customs entry form on 24 November 1992 declaring a customs value for the Mercedes Benz of $33,764.64. In an accompanying form which she also signed as containing statements and answers which were true and correct in every particular and from the information in which the customs value was derived, she said that she purchased the vehicle from Ms Arnold on 10 December 1991 for 37,200 Swiss francs, in Australian currency approximately $34,508. She produced the written sale contract. The customs value was based on the declared purchase price less an allowance the nature of which was not apparent from the workings. The purported purchase price was considerably less than the purchase price from the manufacturer, in Australian currency approximately $54,000, and the motor vehicle had travelled much less than 30,000 kilometres. The total duty at the applicable percentages was $20,402.69. 23 Dalgleish ADCJ found that Ms Arnold was a mock purchaser and the purported sale by Ms Arnold to Ms Butterfield was a sham; that from about May 1991 it was Ms Butterfield's intention to import the motor vehicle into Australia; and - "(f) The only purchase of the Mercedes 230CE was ex factory Stuttgart on 23 August 1991 and Ms Butterfield in signing the Customs entry form on 24 November 1992, intended to supply Customs with the purported sale figure of the sham transaction that was substantially lower than the actual purchase price, knowing that the sale figure would be used by Customs to work out the amount of duty payable to Customs and this was done with the intention to deprive Customs of the duty payable on the actual purchase price.

(g) By the same reasoning in the preceding paragraph Ms Butterfield intended to defraud the Customs of the appropriate revenue and that she knowingly made a false statement to Customs." 24 As well as their overlapping involvement appearing from these facts, Mr Gill and Ms Butterfield agreed on and arranged for the joint shipping of the two motor vehicles to Australia.

The question of law for determination 25 Customs duty is imposed by s 21 of the Customs Tariff Act 1987 (C'th), generally as a percentage of the value of goods. By s 13(2) of that Act, the value of goods is generally "the customs value of the goods ascertained or determined in accordance with Division 2 of Part VIII of the Customs Act 1901". 26 Division 2 of Part VIII of the Act is concerned with valuation of imported goods. By the definition in s 154(1), "customs value" in relation to imported goods has the meaning given by s 159. By s 159(1) the value of imported goods for the purposes of an Act imposing duty is their customs value "and the Collector shall determine that customs value in accordance with this section". That the Collector is the person who makes the determination should be noted, a matter to which these reasons will return. 27 Various descriptions of determining customs value are then identified in s 159 in sequential order, whereby if the Collector is unable to determine customs value of the first description he shall move to the second description, and so on. The first description is "transaction value". Then there are "identical goods value", "similar goods value", "deductive (contemporary sales) value", "deductive (later sales) value", "deductive (derived goods sales) value, "computed value", and finally "fall-back value". Succeeding sections define each description of customs value and how it is determined. For present purposes it is sufficient to note that transaction value is in substance the amount paid or payable for the goods with stated adjustments, and fall-back value, defined in s 161G, is such value as the Collector determines having regard to the other methods and such other matters as he considers relevant but not having regard to some particular matters. The particular matters include "the price of goods on the domestic market of the country from which the imported goods were exported". 28 Under the Act the value given by an importer of goods can be more than his assertion of a figure. The effect of s 161K of the Act and reg 108 of the Customs Regulations is that an importer of goods may estimate their value and by authorising the importation the Collector is taken to have accepted the estimate and determined the customs value of the goods. 29 It was not common ground in the appeal that in the documents to which I have earlier referred the applicants provided estimates of values. Authorisation was given for the importation of the BMW. So far as there may thereupon have been a determination of its customs value, the determination was later revoked by the Collector pursuant to s 161L of the Act. Authorisation was not given for the importation of the Mercedes Benz, and so there could not have been a like determination of its customs value. 30 In the revocation in relation to the BMW and a purported revocation in relation to the Mercedes Benz - purported because there had not been an initial determination - the Collector stated that he determined the customs values at particular amounts. The respondent acknowledged that these purported determinations were flawed, and that there was no proper evidence before Dalgleish ADCJ of the customs value of either the BMW or the Mercedes Benz assessed in accordance with one of the descriptions in s 159 of the Act. 31 The applicants submitted to his Honour that it was necessary for the prosecutor to establish customs value in order that each of the offences could be found proved. 32 The submission was rejected. After considering a number of cases, his Honour said - "I, therefore, hold that in the present case where the Court is satisfied at a prima facie level that there has been a sham or non transaction because of the disparity in value and the circumstances surrounding the transaction, it is not necessary for the prosecution to prove the customs value of the goods. Now when dealing with smuggling I have come to the conclusion that in smuggling there is a liability duty [sic] at the point of importation, that is was implicit in this case in the supplying the figure of the non transaction that was substantially less than the true purchase price which was ex factory. There was an intention to deceive the official and defraud the customs of the appropriate duty that would have been due on the true figure. In respect of the charge of evade that by supplying a figure of a non transaction substantially lower than the actual purchase price ex factory that that figure would be used by customs to work out the appropriate figure amounts, and that that disparity and knowingly doing that with that purpose, was an evasion of duty. In the false statements I would suggest that by wilfully supplying particulars of a non transaction to a customs office rather than the actual transaction figure knowing it was false, it amounted to a wilfully false statement." 33 The question of law submitted by his Honour for determination was - "Did I err in law in holding that it was not necessary for the prosecution to prove customs value of the vehicles determined in accordance with Division 2 of Part VIII of the Customs Act 1901."

Smuggling goods 34 Incorporating the definition into the section, it was necessary that the applicants imported the BMW or the Mercedes Benz with intent to defraud the revenue. Did this require proof of the customs value of the BMW or the Mercedes Benz? 35 Uninstructed by authority, it seems to me that the answer should be in the negative. 36 Proof of the conduct of a person constituting importation of a motor vehicle does not require proof of customs value. That the revenue was in fact defrauded would require proof of customs value, but for importation with intent to defraud what matters is the person's intention, not that the revenue was in fact defrauded. The person could have had an intention to defraud the revenue if he intended that he pay less than the proper customs duty, whatever the proper customs duty may have been, and the intention to defraud could be found from facts which do not include the customs value of the motor vehicle. 37 So in the present cases, importations with intents to defraud the revenue, as distinct from defrauding the revenue in fact, can be found from the devising of mock purchases and sham transactions and the supply to Customs of figures for customs values based on purported purchase prices considerably less than the purchase prices from the manufacturers. From these matters it can be concluded that the applicants intended to pay less than the proper customs duties, whatever the proper customs duties may have been; more specifically, that in the belief that the customs duties were a percentage of the customs values and the customs values should have been based on the purchase prices from the manufacturers, the applicants erected false structures in order that the customs values be based on lesser purchase prices from sham intermediaries. That is in essence what Dalgleish ADCJ found. The true customs values, whether determined by the Collector or found by the court, play no part, and do not have to play a part. 38 The respondent submitted that a negative answer is supported by the decision of this Court in Hansen v Comptroller-General of Customs (1996) 130 FLR 72. The applicants submitted that a negative answer can not stand with the decision of this Court in Barendse v Comptroller-General of Customs (1996) 136 FLR 243. 39 In Hansen v Comptroller-General of Customs the importer of motor vehicles declared to Customs that he had purchased them for amounts less than the amounts for which he had in fact purchased them. He was charged with offences of smuggling goods, evading payment of duty and making false statements. The prosecutor contended that the amounts in fact paid were directly relevant to the determination of the customs values, via fall-back value under s 161G of the Act, and that even if they were not directly relevant they were material to the determination of the customs values. The defendant contended that the amounts in fact paid were immaterial to the determination of the customs values. A question of law was submitted pursuant to s 5B of the Criminal Appeal Act, being "Whether as a matter of law, on the proper construction of the Customs Act, s 161G, the purchase price paid for the vehicles, or either of them, was immaterial to the assessment of value for customs and thus customs duty". 40 The question was answered by Smart J, with whom Sperling and Hidden JJ agreed (at 84) - "In the circumstances of the present case with [the defendant] seeking the assessment of customs duty on the basis of the invoice price of the vehicles (being the ostensible purchase price of the vehicles on the domestic markets of the exporting country with adjustments) and knowingly falsely stating that price, such false statements were material to the assessment of the customs value of the vehicles and the customs duty and sales tax payable." 41 The answer shows that the debate was not concerned with what might be called the true customs values. It was concerned with the customs values as assessed at the time of importation. The question addressed the values for customs and thus customs duties as assessed at that time, on the prosecution case incorrect customs values, and the answer was that false statements as to the prices paid for the motor vehicles were material to the values as then assessed. The question did not involve whether it was necessary for the prosecutor to prove the (true) customs values of the vehicles. 42 As to smuggling goods, it was said that in determining fall-back values regard could not be had to the prices in fact paid, but that the offences had nonetheless been committed. Smart J said (at 82-3) - "The offence of smuggling (any importation or attempted importation of goods with intent to defraud the revenue) does not depend on whether the price paid for the imported goods on the domestic market of the exporting country may be taken into consideration in determining the customs value, being in this case the 'fall-back' value. There is an importation with intent to defraud the revenue where goods are brought into Australia from overseas, the entry for home consumption contains the particular that the invoice price (FOB) and the customs value for duty is a stated figure which is false and the duty shown as payable is demonstrably calculated on that figure. The essential facts are covered in pars 2 to 10 of the information as to the Rolls Royce, in pars 2 to 15 of the information as to the Mercedes Benz and by the judge's findings. The representation of an invoice price to Customs with a significant understatement as to price, knowingly made, and an invitation to assess duty on that basis speak of an intention to defraud the revenue."

43 Contrary to the respondent's submission, his Honour was not saying that intent to defraud the revenue does not require proof of the customs value of the smuggled goods. His Honour was saying that the offence could be proved even if regard could not be had to the prices paid for the imported goods on the domestic market of the exporting country. As the last sentence of the passage shows, the offence could still be proved because the false representation as to the price paid and the invitation to assess customs duty on that basis showed an intention to defraud the revenue: to repeat, the materiality was not to the (true) customs value, but to the customs duty as assessed at the time of importation. Indeed, if anything what Smart J said is contrary to the respondent's submission, because his Honour referred to customs value for duty in a stated figure "which is false", connoting proof of the (true) customs value. But the point did not arise, his Honour seems to have meant falsity because the invoice price was false, and I do not think these words provide comfort to the applicants. 44 Judgment in Hansen v Comptroller-General of Customs was delivered on 1 March 1996. On 29 July 1996 a differently constituted Court (Beazley JA, Grove and Ireland JJ) heard argument in Barendse v Comptroller-General of Customs, in which a sham transaction was interposed and a motor vehicle was imported as one purchased from the purported intermediary for much less than the true purchase price from the manufacturer. One of the questions submitted for determination pursuant to s 5B of the Criminal Appeal Act was whether the offences of smuggling goods, evading payment of duty and making a false statement "could be proved beyond a reasonable doubt when there was no evidence of the customs value of the vehicle". The question was not answered in terms, but the Court considered whether proof of customs value was an ingredient of the charges and concluded that it was. Hansen v Comptroller-General of Customs was not referred to in the reasons: we were informed that, on counsels' inquiries, it had been cited in argument. 45 It is desirable first to note what the Court said (at 262-3) about the Collector being the person who makes the determination of customs value - "The responsibility for determining the customs value of goods lies with the Collector of Customs. This is clear from the terms of s 159, which differs from the predecessor provisions of ss 156 and 157 in a way which is significant to this case. Sections 156 and 157 appeared in Div 2 of Pt VIII of the Act. Division 2 was repealed on 1 July 1989 and a new Div 2 substituted: see Customs and Excise Legislation Amendment Act 1989 (Cth). Section 156 had provided that the value of imported goods was their "customs value determined in accordance with Division 1 of Part VIII of the Act". Section 157 provided that, subject to s 157(2), the customs value of goods was their transaction value. This is to be contrasted with the provisions of the new s 159. As has been seen, under s 159(1) the customs value of goods is the value of the goods. Section 159(2) provides, however, that the transaction value of goods will be their customs value where the Collector can determine that value. That valuation process is not necessarily straightforward as the detailed definition provisions indicate.

Until such time as the customs value is determined, the actual entitlement of the revenue, that is the Commonwealth of Australia, is not known, although the liability to duty arises at the point of importation: see Gallagher v Cendak [1988] VR 731 at 741. The Collector's decision as to customs value is final, subject only to the provisions of s 163 relating to refunds, rebates or remissions of duty and the appeal procedures laid down by the Customs Act, s 167. Section 167 provides that if any dispute arises as to the amount or rate of duty payable in respect of any goods, the owner of the goods may pay, under protest, the sum demanded by the Collector. The sum paid under protest shall be deemed to be the proper duty payable unless the contrary is determined in an action against the Collector for the recovery of the whole or any part of the sum paid, in any Commonwealth or State court of competent jurisdiction.

On the assumption that customs value must be proved in order for these three charges to be made out, that which must be proved is the customs value as determined in accordance with the Customs Act. It is clear from s 159 that that determination must be made by the Collector in the circumstances prescribed by the section. It is not sufficient, therefore, to provide to the court a series of facts and figures and request the court, either expressly or inferentially, to determine the customs value. The error in doing so is not only patent in that it invests in the court the executive function of determining customs value which is vested by the Act in the Collector, but is underscored by the fact that it deprives an owner of goods of their rights under ss 163 and 167.

There was no evidence in this case that the Collector had ascertained that the transaction value of the vehicle could be determined. In the absence of such evidence, we are of the opinion that it was not open to the Court to determine that the transaction value of the vehicle was its customs value."

46 This meant that the prosecutor had not proved the customs value of the motor vehicle. The Court then posed (at 263) the question "whether the customs value is an ingredient in any of the three offences". 47 As to the charge of smuggling goods, the Court said (at 263-4) - "Section 233(1)(a) provides that '[a] person shall not smuggle any goods". "Smuggling" is defined in s 4 to mean: " ... any importation ... or attempted importation with intent to defraud the revenue.'

An intention to defraud the revenue has been described as an 'intention to prevent something getting into the revenue which the revenue is entitled to get': see R v Australasian Films Ltd (1921) 29 CLR 195 at 218.

The meaning of 'defraud' was explained in Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728 at 732-733, Buckley J, as follows: 'To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely, it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.' This statement has 'been accepted and used ... as providing a satisfactory account of the essentials of defrauding' on the one hand and deceiving' on the other': Welham v Director of Public Prosecutions [1961] AC 103 at 127 per Lord Radcliffe.

In Balcombe v De Simoni (1972) 126 CLR 577, Gibbs J referred with qualified approval to Buckley J's definition. The qualification made by his Honour related to the charge of obtaining by false pretences with intent to defraud being the offence subject of consideration in that case. Gibbs J pointed out that it was of the essence of that offence that property be obtained. It is not sufficient, therefore, on such a charge, to merely prove an intent to bring about a course of action which did not involve the obtaining of property.

In dealing with this charge, it is also important to keep in mind that a court will not lightly find an intention to defraud: R v Amenores [1980] 2 NSWLR 34; Noyes Bros Pty Ltd v Johnson [1988] VR 787 at 815.

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.

Evading payment of duty 62 The charge against Mr Gill and the charge against Ms Butterfield differed, in that the former charge was of evading payment of duty and the latter charge was of attempting to evade payment of duty. They should be addressed separately.

(a) Actual evasion 63 The offence is explicit: by s 234(1)(a) there must be evasion of payment of any duty "which is payable". Accordingly, it is necessary to prove that duty was payable and that payment of the duty was evaded. Again uninstructed by authority, it seems to me that proof is required not that some duty was payable but of what duty was payable, payment of which was evaded, and so that the (true) customs value of the goods must be proved in order to prove what duty was payable. In Barendse v Comptroller-General of Customs it was said that that requires a (later) determination by the Collector, and a court can not be asked to find the customs value from facts and figures provided to it. 64 It may be noted that the charges as framed called for proof that duty was payable. They alleged that the applicants evaded or attempted to evade payment of duty "of no less than [a stated amount] that was payable in respect of [the motor vehicle]". The amounts of evaded customs duty alleged, "not less than $3,358.94" in the case of the BMW and "not less than $8,852.89" in the case of the Mercedes Benz, were not founded on evidence of customs value. Even as allegations of minimum amounts of duty, it is not easy to see how the minimum amounts could be established without proving (true) customs values from which customs duty no less than the amounts were derived. To establish a minimum amount beyond reasonable doubt customs value must be known. 65 In Hansen v Comptroller-General of Customs Smart J said (at 83) - "The offence of evading payment of customs duty also does not depend on whether the price paid for the imported goods on the domestic market of the exporting country may be taken into consideration in determining the customs value, and in this case, the 'fall-back' value.

The knowingly false, major understatement of the invoice price, [the defendant's] invitation to treat such understated price as the customs value and to calculate the duty payable on the basis of such price, causing an assessment on that basis to be made and the paying of it amounts to an evasion of payment of customs duty.

The information as to each vehicle specified the precise amounts of duty short levied, which were significant and based upon the difference between the falsely stated amounts and the true total price for each vehicle.

The false statements bear upon any consultation between the importer and Customs, any negotiations and any agreement as to the method of valuation, the customs value and the duties payable.

When the importer purports to take the invoice price as the customs value and that purported price is false and the true invoice price (being the true price paid for the goods) is more than double there is little difficulty in concluding that there has been an evasion of duty."

66 The respondent submitted that this supported a conclusion to the contrary of my uninstructed view. But the question submitted for determination, and the answer to it, must be recalled. The amounts in fact paid for the motor vehicles were material to the assessment of the customs value of the motor vehicles. As his Honour noted, the informations specified "the amounts of duty short levied", and the true invoice price went to show evasion: proof of the amount of duty short levied, and so proof of the (true) customs value, did not arise. It is notable that his Honour did not refer to the duty having to be duty "which is payable". I do not think his Honour was saying that evading payment of duty does not require proof of the customs value of the goods in respect of which duty is payable. 67 I have already referred to the Court's conclusion in Barendse v Comptroller-General of Customs in relation to smuggling goods and evading payment of duty. My difficulty expressed in relation to the offence of smuggling goods does not extend to the offence of evading payment of duty. For the latter offence the conclusion is at one with my uninstructed view, that the (true) customs value must be proved in order to establish that, because the importer stated a lesser customs value, duty which was payable was not paid. 68 In its consideration of the offence of evading payment of duty the Court observed that the evasion proscribed by s 234(1)(a) is of duty which is payable, and that duty is only payable on the customs value of goods. It referred to Cendak v Crawford (1986) 86 FLR 190, in which in the absence of evidence of customs value a prosecution for making a false statement failed, and to Gallagher v Cendak (1988) VR 731, in which it was held that it was necessary to show an intention to defraud the revenue of at least some duty but not to establish (at 743) "that the calculation of the actual amount of duty payable had already been made at the time … or that the precise customs value of the goods had been determined at the time of information". 69 The Court said (at 265) - "Gallagher v Cendak provides an obvious example where the charges of smuggling, evasion of duty and false statement can be proved, notwithstanding that there has been no determination of customs value, as in that case, the amount declared by the appellant on the entry for home consumption was substantially below the purchase price of the goods. Cendak v Crawford, on the other hand, provides an example on its facts, where the absence of evidence of customs value was fatal to the prosecution. Both cases were decided when the now repealed Div 2, ss 156 and 157 was in operation. What, then, is the position in this case?"

70 After referring to the evidence in the case, apparently to make the point that it was scanty and did not provide a basis on which the customs value of the motor vehicle could be assessed, the Court stated its conclusion in the passage earlier set out. 71 The respondent submitted that the Court recognised that there can be cases in which proof of the customs value of the imported goods is not necessary. I do not think that is correct. The Court noted that Cendak v Crawford and Gallagher v Cendak had been decided on the earlier provisions of the Act relating to determination of customs value. As has been seen, it had earlier said that the difference was significant to the case under decision. When the Court then addressed "the position in this case", it held that it was necessary for the prosecutor to prove the customs value of the imported goods. It recognised that under the earlier provisions of the Act the offences could be proved "notwithstanding there has been no determination of customs value", but what was meant by that can be seen from the facts in Gallagher v Cendak: there had been no calculation of the (true) amount of duty at the time of importation and no determination of the (true) customs value at the time of the information, which is not the same as no proof of the customs value of the goods in the prosecution. When considering the offence of making a false statement, the Court specifically distinguished Cendak v Crawford and Gallagher v Cendak as decisions relating to "repealed provisions which were in different terms to the provisions of s 159". The expression of the Court's reasons is, with respect, not entirely precise, but the conclusion is clear that under the current provisions of the Act proof of the customs value of the imported goods is required, specifically by a (later) determination by the Collector.

(b) Attempted evasion 72 The submissions in the appeal paid no regard to the offence being attempted evasion as distinct from actual evasion. They did not enter, for example, upon whether or not actual evasion must be possible in order that there be attempted evasion. Rather, it appeared to be common ground that, because the offence was attempting to evade payment of duty "which is payable," if proof of customs value was necessary for the offence of evading payment of duty it was also necessary for the offence of attempting to evade payment of duty. The question should be answered on the basis of the apparent common ground.

Making a false statement 73 For this offence the false statement need not be of the customs value of the imported goods. The statement must be false, and a statement ascribing the importer's acquisition of the goods to a sham transaction may be a false statement because of the sham transaction. 74 The statement must not only be false, it must also be false in a material particular. Material to what? Material to assessment of customs duty, meaning that it may (not must) be taken into account in that assessment as something more than trivial or inconsequential (cf Minister for Immigration, Local Government and Ethnic Affairs v Della Cruz (1992) 34 FCR 348 at 352). Many statements other than statements of customs value may be material to assessment of customs duty, and a statement may be material to assessment of customs duty otherwise than as a basis for determining the (true) customs value: see the passage from Hansen v Comptroller-General of Customs set out below. Accordingly, again uninstructed by authority it seems to me that proof of customs value may or may not be necessary. It depends on the false statement alleged in the charge and its materiality to assessment of customs duty. 75 In Hansen v Comptroller-General of Customs Smart J said (at 83-4), after his Honour's consideration of the offences of smuggling goods and evading payment of duty - "These observations indicate an approach to the charges of smuggling and evasion which may not correspond completely with that to the charges of knowingly making a statement that was false in a material particular. However, counsel did not approach them separately. The falsity of the statements made was not contested. The issue was whether the falsity was in a material particular.

Upon materiality Customs correctly submitted that [the defendant] wished Customs to accept, as the customs value of the vehicles, his proffered basis of the invoice price (with adjustments) as the price paid for the vehicles. On this basis, the customs duty would be 40 per cent (and sales tax 20 per cent) of the false invoice price.

[The defendant] submitted that both he and Customs had approached the assessment of the duties upon an incorrect basis. That may be so. He certainly did in supplying knowingly false information. Ostensibly, he was propounding the invoice price (albeit falsely stated) with adjustments.

Customs was prepared to and initially assessed duty on the invoice price which [the defendant] propounded. Subsequently it assessed duty on the invoice price, correctly stated. It treated the true purchase price with adjustments as the customs value. [The defendant] and Customs started ostensibly from the same base of the invoice price. [The defendant] stated it falsely whereas Customs insisted on it being stated truthfully. As earlier mentioned, the parties may agree on customs value and its method of calculation. This presupposes the supply of correct (or at least not deliberately false) information.

Where a party propounds a basis for the assessment of customs duty and knowingly states falsely the material figures relating to that basis and seeks to have Customs act upon that basis and upon those false figures it is unsustainable to suggest that those statements are not material to the assessment of customs duty and sales tax. It is not to the point that the basis suggested for the calculation of duty was incorrect or rejected. The knowingly false information is supplied in an effort to obtain a favourable assessment. It could not be accepted that an importer could supply, knowingly, false information of some consequence as the basis of the assessment he proposed but be untroubled if that basis or method of assessment is rejected." 76 I respectfully agree. Inherent in this is that proof of customs value is not always necessary, in that there can be falsity in a material particular if a statement is made material to the assessment of customs duty at the time of importation. The assessment at that time will not necessarily be on the (true) customs value of the imported goods - Smart J even contemplated an assessment of customs duty agreed between the parties although not in accordance with the Act. Again the question for determination in that case, and the answer, should be recalled. What his Honour said, however, does not bear upon the need for proof of customs value when the (true) customs value is made an element of the charge by the false statement alleged and its materiality to assessment of customs duty. 77 I do not think that what I have said is at odds with the two cases cited in which the prosecution failed for want of proof of customs value, Cendak v Crawford and Barendse v Comptroller-General of Customs. 78 In Cendak v Crawford the falsity alleged was that a motor vehicle had been declared at its purchase price whereas its (true) customs value was its purchase price plus the cost of certain repairs. It was held that falsity had not been established because repairs did not necessarily add value. There was no other evidence of falsity. The (true) customs value was made an element of the charge, but was not proved, so falsity was not established. 79 In Barendse v Comptroller-General of Customs the particularisation of the charge of making a false statement was that the customs value was stated at a particular figure "whereas in fact the total customs value was [a higher figure]". The Court's reasons as to that charge were brief, no doubt because of the preceding discussion concerning proof of customs value. It was said (at 266) - "If the Collector seeks to prove that an entry is false in a material particular within s 234(1)(d)(i) because there has been a statement of customs value which is false, it is necessary to prove the customs value. To this extent, Cendak v Crawford and Gallagher v Cendak are not relevant, as those decisions related to repealed provisions which were in different terms to the provisions of s 159."

This is unexceptional: falsity of the statement of customs value was made an element of the charge, and so the (true) customs value had to be established. 80 I have described the charges of making false statements in the present cases. They were in essence that the customs values of the motor vehicles were falsely given as the stated amounts because the (true) customs values were in excess of those stated. The (true) customs values were therefore made elements of the charges, at least to the extent that it was necessary to prove that the (true) customs values exceeded the stated customs values: cf making facts essential ingredients of an offence as discussed in R v Radic (2001) NSWCCA 174. Perhaps with a charge so framed it could be proved that a (true) customs value exceeded a stated customs value without proving what the (true) customs value was, for example by establishing that any possible (true) customs value was greater than the stated customs value. It is not necessary to express a concluded view, because that was not attempted in the present cases. As the prosecution was conducted, proof of customs values was necessary in order to make out the false statements alleged in the charges.

The accessory charges 81 As I understand it, it was common ground that the position for the substantive offences carried over into the accessory offences. It is therefore not necessary to say more in relation to the charges of being directly concerned in each other's substantive offences. The further question 82 One of three further questions which Dalgleish ADCJ declined to submit to this Court for determination was - "Whether I erred in holding that it was open to me on my findings and on the evidence to hold that the offences as charged or any of them were made out." 83 By a summons filed in the Administrative Law List the applicants sought relief on the ground that his Honour had erred in law in refusing to submit that and the other two questions. In reasons given on 22 May 2001 Newman AJ declined to grant relief, in the case of the question set out above because it involved a question of fact. No appeal has been brought from the decision of Newman AJ. 84 The applicants submitted that this Court should determine the question. Even if the question sought to be raised were a question of law, and I do not suggest that it is, it has not been submitted to this Court pursuant to s 5B of the Criminal Appeal Act 1912. This Court can not and should not enter upon it.

The result 85 Globally addressing all three offences of smuggling goods, evading payment of duty and making a false statement can confuse or lead to error, because they are distinct offences in which customs value may play different parts. So may addressing the offences in the abstract confuse or lead to error, because the particular charge may affect the part played by customs value. In the present cases, a yes or no answer to the undifferentiated question is not possible. 86 For the reasons I have given, I consider that the answer to the question should be that for the offences of smuggling goods and the corresponding accessory offences it was not necessary for the prosecution to prove the customs values of the motor vehicles determined in accordance with Div 2 of Pt VIII of the Act, but that for the offences of evading payment of duty, attempting to evade payment of duty and making a false statement and the corresponding accessory offences it was necessary to prove the customs values. 87 Section 5B of the Criminal Appeal Act provides, in relation to its determination of a question of law submitted to it, that this Court may make "any such order or give any such direction to the District Court as it thinks fit". It appears to follow from the determination of the question of law that the applicants' convictions on the charges of smuggling goods should stand, but the determination otherwise may have consequences, in law and possibly in fact, for the other charges and as to costs. The appropriate course is to remit the proceedings to the District Court for further consideration in accordance with the determination. 88 There has been part success and part failure in the determination of the question of law. In my opinion no order should be made as to the costs of the proceedings in this Court.

(1) Determine the question of law no as to the charges of smuggling goods and cognate accessory charges but yes as to the charges of evading payment of duty, attempting to evade payment of duty and making false statements and cognate accessory charges.

(2) Remit the proceedings to the District Court for further consideration in accordance with this determination.

(3) Make no order as to the costs of the proceedings in this Court. 89 HOWIE J: I agree with the orders proposed and reasons given by Giles JA. 90 CARRUTHERS AJ: I have read the judgment of Giles JA in draft form. I agree with the orders which his Honour proposes and his reasons therefore. __________

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