PARKER v COMPTROLLER-GENERAL OF CUSTOMS [2007] NSWCA 348

From 1987 to 1989, officers of the Australian Customs Service conducted an investigation in relation to suspected breaches of the Spirits Act 1906 (Cth) and the Customs Act 1901 (Cth). The suspected breaches involved certain importers of brandy who had been "extending" the product with locally produced grain-based alcohol on which duty had not been paid. Three main businesses were believed to be involved in the scheme: Lawpark Pty Ltd, an importer and distributor of spirits; Kingswood Distillery Pty Ltd, a maker and processor of spirits; and Breven Pty Ltd, the operator of a bond store at which imported spirits were warehoused. The Appellant, Mr Parker, was a director and shareholder of Lawpark Pty Ltd and Breven Pty Ltd.

In March 1990, customs officers attended a number of premises and requested the production of books and documents in relation to the scheme. On forming the view that there had been a failure to comply with the request, the customs officers executed search warrants issued under the Customs Act. Subsequently, the Appellant, amongst others, was charged and convicted of 14 offences under ss 33 and 234 of the Customs Act.

The Appellant sought to have certain documents excluded pursuant to s 138 of the Evidence Act 1995 (NSW). The documents had been seized pursuant to a warrant issued under s 214 of the Customs Act. The Appellant argued that both the issue of the warrant and its execution were either unlawful or improper. A voir dire was conducted and Simpson J gave judgment ruling that the evidence should be admitted. The Appellant was convicted, largely on the basis of an analysis of the seized documents. The present appeal is brought from the interlocutory judgment of Simpson J.

(i) the jurisdiction of the Court in relation to an appeal from a customs prosecution;

(ii) the scope of the search powers pursuant to execution of a warrant under s 214 of the Customs Act;

(iii) the extent of the improper or unlawful conduct; and

(iv) whether the primary judge properly exercised her discretion to admit the evidence.

1. Under State law, rights of civil appeal are identified not by the nature of the order but by the manner of instituting proceedings, pursuant to the exclusions contained in the Third Schedule of the Supreme Court Act 1970 (NSW). As the Customs Act 1901 (Cth) requires that proceedings be commenced by civil process, the right of appeal will arise under the Supreme Court Act: [38].

Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161; Jack Brabham Holdings Pty Ltd v Button (1988) 94 FLR 278; Rowling v Murray (1993) 116 FLR 125; Ex parte Oesselmann [1902] NSWStRp 50; (1902) 2 SR (NSW) 149; Evans v Lynch [1984] 3 NSWLR 567; Evans v Button (1988) 13 NSWLR 57; Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 443; Stephens v Abrahams [1902] VicLawRp 123; (1902) 27 VLR 753; Chief Executive Officer of Customs v Powell [2007] QCA 106, considered.

2. The appeal was properly instituted in the Court of Appeal: [39].

3. Subsection 214(3) of the Customs Act is not restricted to the goods the subject of the written information but includes the goods imported or exported during the previous five years: [49].

In the matter of O'Neill (NSWDC, 18 August 1988, unrep), not followed.

4. The primary consideration in deciding upon the admissibility of unlawfully or improperly obtained evidence is whether there has been deliberate disregard for the law as opposed to an accidental or inadvertent contravention: [59].

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, applied.

5. Where the impropriety arises from inadvertence or mistake, the higher the probative value of the evidence and the greater the seriousness of the crime, the greater the public interest in its admission. The weight to be given to these considerations cannot be resolved in the abstract but depends upon the circumstances of the case and the interplay between the different factors: [62]

6. It was open to the trial judge to reject the suggestion that there was any dishonourable or dishonest motive on the part of Customs in deciding to pursue the investigation through s 214 of the Customs Act: [76]. There is no basis for holding that reliance on s 214 was inconsistent with advice received from counsel, or that such advice was ignored by Customs: [71].

7. The Appellant failed to establish that the purpose of the request for notices was not to obtain the production of documents but to trigger the entitlement to execute the warrant, being an improper purpose: [89].

8. The notice to produce documents was insufficiently precise in its identification of the goods in question. The notice was invalid and purported reliance on it engaged s 138 of the Evidence Act 1995 (NSW): [90].

9. Whether there has been a failure to comply with a request to produce documents depends upon whether a reasonable time has been allowed for compliance: [94].

Ace Custom Services Pty Ltd v Collector of Customs (NSW) (1991) 104 ALR 463; Ganke v Deputy Federal Commissioner of Taxation [1975] 1 NSWLR 252; Holmes v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4328, considered.

10. On the basis of the evidence, it was open to the trial judge to find that Mr Parker had failed to comply with the notice in the sense that he had demonstrated no willingness to produce and hand over all of the documents required by the notice: [107].

11. There was no deliberate or reckless disregard of an established constraint on the power of Customs officers in executing a warrant. Customs did not act improperly in failing to instruct its officers to adhere to a narrow view of their powers under s 214 of the Customs Act: [118].

12. In the circumstances, the weighing exercise required under s 138 of the Evidence Act to determine whether evidence should be admitted turned on whether the actions of the Customs officers could properly be described as involving a wilful disregard of legal constraints imposed on their powers: [121].

13. The Appellant failed to establish any wilful disregard for the law, dishonest motive or improper purpose on the part of Customs: [123]-[124]. Nor was any error established in the reasons provided by the primary judge with respect to the balancing exercise required by s 138(3) of the Evidence Act: [127].

3 BASTEN JA: Over a period covering 1987-1989 officers in the Australian Customs Service conducted an extensive investigation in relation to suspected breaches of the Spirits Act 1906 (Cth) and the Customs Act 1901 (Cth). The officers came to the view that certain importers of brandy, prior to bottling and sale, had been contaminating or "extending" the product with locally produced grain-based alcohol on which duty had not been paid. The scheme was understood to involve three main businesses. Lawpark Pty Ltd ("Lawpark") imported and distributed spirits. Kingswood Distillery Pty Ltd was a maker and processor of spirits in Australia. Breven Pty Ltd ("Breven") operated a bond store at which imported spirits could be warehoused without incurring a liability to pay duty. The present Appellant, Mr Stephen Parker, was a director and shareholder of both Lawpark and Breven.

4 By March 1990, customs officers had formed the view that all of the bottled stock which had been tested and contained "extended" spirit, came from the bond store operated by Breven. On 6 March 1990 officers attended at a number of premises, requested the production of books and documents and, on forming the view that there had been a failure to comply with the request, executed search warrants issued under the Customs Act. An analysis of documents produced as a result of these searches led to charges being laid under the Customs Act against, amongst others, the present Appellant.

5 Proceedings commenced in 1992 in the Common Law Division against Mr Parker and others laid charges of offences under the Customs Act involving the evasion of duty in an amount exceeding $3 million. The charges relating to Mr Parker came on for trial before Simpson J in April 2005 and, in a judgment dated 8 May 2006, Mr Parker was convicted of 14 offences under ss 33 and 234 of the Customs Act: Comptroller-General of Customs v Parker [2006] NSWSC 390.

6 Mr Parker appealed against his convictions on numerous grounds, but by the conclusion of the hearing of the appeal, the scope of the challenges had been drastically reduced. The grounds which were pressed were restricted to the admission of company records seized from Lawpark on 6 March 1990. The records were seized pursuant to a warrant issued under s 214 of the Customs Act. Both the issue of the warrant and its execution were said to be either unlawful or attended by impropriety. Accordingly, the Appellant sought to have the documents obtained in the execution of the warrant excluded by the trial judge pursuant to s 138 of the Evidence Act 1995 (NSW).

7 A voir dire was conducted over five days in April 2005, at the conclusion of which her Honour ruled that the evidence should be admitted and the hearing proceeded. Her reasons for so ruling were delivered in a separate judgment of 8 May 2006: Comptroller-General of Customs v Parker [2006] NSWSC 387. It is from that interlocutory judgment that the present appeal is brought.

8 The delay in this matter reaching a trial in the Supreme Court appears to have arisen from a stay being ordered on 10 June 1994 in the Common Law Division for reasons which were described by the trial judge as "not apparent, and no longer relevant": [2006] NSWSC 390 at [54]. Over the years that have elapsed there have been significant changes to the law. For example, the Spirits Act 1906, in relation to possible contraventions of which the investigation was undertaken, has long since been repealed, as have the provisions of the Customs Act under which the warrant was issued and the search conducted. In relation to the circumstances surrounding the issue of the warrant, the request for production of documents and the execution of the warrant, the relevant law to be discussed below was that in force in March 1990. The Evidence Act, under which questions of admission of evidence arose, was enacted after the commencement of the proceedings, but before the trial. Key laws relating to the jurisdiction of this Court have, fortunately, not changed between the date of commencement of proceedings in the Common Law Division in 1992 and the date of the appeal.

9 The issues raised on the appeal have been addressed as set out below:

Search powers: Customs Act, s 214

Exclusion of evidence: Evidence Act, s 138

10 Neither the notice of appeal nor the pre-hearing written submissions considered the source of this Court's jurisdiction. A question was raised by the Court at the commencement of the hearing as to whether the proceedings should properly have been brought in the Court of Criminal Appeal. Submissions were subsequently made in relation to this question, both parties contending that this Court had jurisdiction, but agreeing to the necessary steps to have the matter disposed of by a Court of Criminal Appeal constituted by the same bench, should that prove necessary.

11 It was not in dispute that the present proceedings were "Customs prosecutions" for the purposes of Part XIV of the Customs Act: see s 244. The proceedings were instituted by the Comptroller in the Supreme Court, as allowed by s 245(1)(a). This provision constitutes a law of the Parliament investing the Supreme Court with federal jurisdiction, pursuant to s 77(iii) of the Constitution. The jurisdiction of this Court for the purposes of an appeal must be identified in a law of the Commonwealth which either expressly confers that jurisdiction or applies the relevant laws of the State in that respect: see, eg, the general provisions in ss 68, 79, 80 of the Judiciary Act 1903 (Cth).

12 Before considering the operation of such general provisions, it is necessary to consider the specific provisions of the Customs Act. Thus, s 247 of the Customs Act provides:

"Prosecutions in accordance with practice rules

247 Every Customs prosecution in a court referred to in subsection 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge."

13 This provision does not in terms deal with rights of appeal. The words "commenced prosecuted and proceeded with" are apt to cover a trial. There being no rules of practice in respect of Crown suits in revenue matters in the Supreme Court, the practice and procedure of the Court in "civil cases" would apply. This provision may operate differentially in relation to particular issues. Thus, it does not invoke rules relating to the burden of proof in civil cases: see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161.

14 Section 248 makes further provision in relation to matters of practice:

248 Subject to the provisions of this Act the provisions of the law relating to summary proceedings in force in the State or Territory where the proceedings are instituted shall apply to all Customs prosecutions before a Court of summary jurisdiction in a State or Territory, and an appeal shall lie from any conviction order for condemnation or order of dismissal to the Court and in the manner provided by the law of the State or Territory where such conviction or order is made for appeals from convictions or orders of dismissal, and notwithstanding anything to the contrary in the law of the State or Territory, an appeal shall lie from an order of dismissal to any court to which and in the manner in which an appeal lies from a conviction."

15 Although the opening words of s 248 invite attention to other provisions of the Customs Act, there are none of consequence for present purposes, with the possible exception of s 247. Thus, to the extent that s 248 purports to pick up "provisions of the law relating to summary proceedings" in force in a State, it may not be effective to pick up procedure in criminal cases inconsistently with the mandate of s 247. However, it is clear from the composite effect of the opening lines of s 248 that it intends to refer to summary proceedings "before a Court of summary jurisdiction" in the particular State. The term "summary jurisdiction", at least in the context of criminal proceedings, is usually intended to identify a jurisdiction in relation to indictable offences where a trial is to be conducted otherwise than before a judge and jury. The Supreme Court in this State now exercises summary jurisdiction pursuant to Chapter 4, Part 5 of the Criminal Procedure Act 1986 (NSW). However, the fact that s 245(1) distinguishes in par (a) (referring to the Supreme Court of a State) and par (f) (referring to "a Court of summary jurisdiction of a State") between superior courts and courts of summary jurisdiction indicates that s 248, at least in its first limb, was not intended to apply to the exercise of summary jurisdiction by the Supreme Court. (There appears to be no particular consistency in the manner in which these provisions refer to "Court" and "court".) Further support for this view may be obtained from s 26 of the Acts Interpretation Act 1901 (Cth) which defines "Court of summary jurisdiction" to mean "any justice or justices of the peace or other magistrate ... of a State or part of a State ... sitting as a court ... for the making of summary orders or the summary punishment of offences ...".

16 The next question is whether the reference in the second part of s 248 to "an appeal" from "any conviction" is to be understood as limited to the preceding subject matter, namely proceedings in courts of summary jurisdiction, or whether it should be understood to refer to convictions in proceedings brought in any court.

17 If s 247 applies to every court referred to in s 245(1), the purpose of the first limb of s 248 is obscure. An alternative view is that s 247 applies to superior courts, whereas s 248 was intended to apply to courts of summary jurisdiction. The Comptroller-General noted that that approach accorded with Wollaston's_,_ (HNP Wollaston, Customs Law of Australia (1904) William Brooks & Co, at pp 161-163). That is true: however, Wollaston was writing at a time when s 247 was expressly limited to Customs prosecutions "in the High Court of Australia or the Supreme Court of any State". Wollaston was correct when he wrote. Provision for prosecution in the High Court was not removed from sections 245 and 247 until the Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 (Cth). After that amendment, section 247 was limited to proceedings in a Supreme Court. The variation of section 247 by omitting reference to a Supreme Court and substituting "court referred to in subsection 245(1)" was only effected by the Customs and Excise Amendment Act 1982 (Cth), s 62. No amendment was made to s 248 and the consequence for that provision of the amendment to s 247 may not have been appreciated. However, the result with respect to s 247 is that it now appears to prescribe the procedure to be adopted in a Customs prosecution in all courts: see Labrador Liquor, [27] (Gummow J).

18 The historical coverage of s 248 is more obscure. In 1901 s 245 identified three courts or categories of court in which proceedings might be brought, namely the High Court (par (a)), the Supreme Court of a State (par (b)), or "any County Court, District Court, Local Court or Court of summary jurisdiction": (par (c)). Section 248, as enacted, picked up the law relating to summary proceedings "before Justices" which was referable to Courts of summary jurisdiction, but would appear not to have applied to a County Court or District Court. Whatever the resolution of that apparent anomaly, the second limb of s 248 has at all stages referred to appeals "in the manner provided by the law of the State". It would have been inapt for that provision to apply to the High Court, or indeed to the Supreme Court if it were intended thereby to pick up rights of appeal to the High Court, not being a matter dealt with by the law of a State. Nevertheless, the fact that there are on any view anomalies removes some of the force from the contention that the second limb of s 248 must be intended to be limited to the subject matter of the first limb. Rather, it seems likely that it was intended to apply to proceedings brought in the County Court or District Court or a Local Court, as well as a Court of summary jurisdiction, for otherwise there would have been no provision in 1901 permitting an appeal by any party from an order of those Courts.

19 The interrelationship of ss 247 and 248 in their current form was discussed by the Queensland Court of Appeal in Chief Executive Officer of Customs v Powell [2007] QCA 106 (McMurdo P, Holmes JA and Chesterman J). After a careful consideration of the legislative history of the provisions, including the explanatory memorandum for the 1982 amendments, the Court concluded that at least where proceedings were commenced in a Court of summary jurisdiction, the first limb of s 248 permitted proceedings to be commenced either in accordance with the civil rules or with the rules for criminal offences dealt with in its summary jurisdiction: at [14]-[19]. Their Honours concluded that the 1982 amendment was not intended to cause a drastic constriction of the operation of s 248, so as to make s 247 the sole basis upon which a Customs prosecution could be commenced in a State or Territory court. Although s 248 is required to be read subject to the provisions of the Customs Act, s 247 should not be treated as a provision giving rise to inconsistency. The submissions of the Chief Executive Officer that such provisions as s 251 (no objection for informality), s 252 (conviction not to be quashed for procedural defect or want of form), s 253 (protection to witnesses), s 254 (defendant competent witness) and s 255 (averment of prosecutor sufficient) were examples of provisions to which State summary procedure might be subject: at [10]. As their Honours recognised, this approach was contrary to the view of Gummow J in Labrador Liquor: at [19]. The issue does not need to be addressed further in the present case.

20 There remains a question as to whether s 248 operated with respect to appeals from convictions in the Supreme Court. If it did not, it would appear that such appeals must have been covered by s 247, because, in 1901, there was no other general law applying State laws in matters of federal jurisdiction. Prior to the statutory provisions for appeal in criminal matters, there were limited rights of challenge against conviction available under the common law: see generally Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203. It may have been assumed that such common law rights would apply in relation to a Customs prosecution brought in a State Supreme Court, whereas it was thought to be necessary to provide for the application of statutory provisions relating to appeal from Courts of summary jurisdiction, such as s 9 of the Justices Acts Amendment Act 1900 (NSW). Further, it was well-established by 1901 that the Supreme Court exercised appellate jurisdiction regulated by statute: see, eg, Supreme Court and Circuits Act 1900 (NSW), s 18.

21 Nor can this problem now be resolved simply by reliance upon the general provisions of the Judiciary Act. That is because they operate only to the extent that another law of the Commonwealth does not otherwise provide and because their operation does not resolve the question as to whether State laws with respect to appeals from criminal convictions or from civil judgments are applicable.

22 The Court's attention was not drawn to any case in which this issue has been addressed. In Stephens v Abrahams [1902] VicLawRp 123; (1902) 27 VLR 753 at 756-757, Hodges J held that an order for review available in the Supreme Court of Victoria with respect to a conviction in a Court of Petty Sessions was an "appeal" for the purposes of s 248. A similar conclusion was reached by a Full Court in this State in Ex parte Oesselmann [1902] NSWStRp 50; (1902) 2 SR (NSW) 149 (Stephen, Owen and Cohen JJ) in relation to statutory prohibition in respect of a decision of justices.

23 In Evans v Lynch [1984] 3 NSWLR 567, this Court considered an appeal against a decision by a judge in the Common Law Division not to order that proceedings under the Customs Act be tried by a jury. It appears to have been accepted without consideration that an appeal lay in the civil jurisdiction of the Court.

24 More recently, there have been a number of appeals dealt with by this Court, in which comments have been made as to the appropriate characterisation of the proceedings in the Common Law Division, though not for the purposes of considering the right of appeal. Thus, in Evans v Button (1988) 13 NSWLR 57, the Court considered an appeal from a decision by the trial judge to allow an amendment of the summons in accordance with the Supreme Court Rules. Mahoney JA (Priestley and McHugh JJA agreeing) considered that, pursuant to s 247, the trial judge was correct and the appeal was dismissed.

25 In Jack Brabham Holdings Pty Ltd v Button (1988) 94 FLR 278 this Court (Kirby P, Mahoney and Clarke JJA) considered the proper approach to an application for a stay of proceedings on the basis that, as a result of delay, they constituted an abuse of process. All members of the Court noted the difficulty in classifying the proceedings as either civil or criminal; none addressed the question of the classification for the purposes of appeal.

26 Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 443 was concerned with an appeal taken from the Local Court to the District Court with respect to convictions of a number of charges of evading payment of duty. Hosking DCJ in the District Court stated a case pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) for consideration of the Court of Criminal Appeal. (Although the Court is referred to as "Court of Appeal" in the heading of the report, that is clearly an error, the matter being dealt with by Kirby ACJ, Allen and Dowd JJ, sitting as the Court of Criminal Appeal.) The appropriateness of this course of appeal generally was established in Collector of Customs v Tallerman & Co Pty Ltd [1975] 2 NSWLR 832 (NSW CCA, Street CJ, Nagle and Begg JJ).

27 In Rowling v Murray (1993) 116 FLR 125, Debelle J in the Supreme Court of South Australia heard an appeal from a magistrate challenging the validity of an amendment in the form of an additional charge. His Honour appears to have treated the matter as controlled by s 248 of the Customs Act and applied a section of the Justices Act 1921 (SA) dealing with criminal proceedings.

28 In Labrador Liquor, at [114], Hayne J (in a judgment with which Gleeson CJ and McHugh J agreed) stated:

"Arguments founded on classification of the proceedings as 'civil' or 'criminal' as determinative of the standard of proof, must fail. As reference to the historical matters mentioned earlier reveals, the classification proposed is, at best, unstable. It seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges."

29 Despite the terms of s 247, the Court in Labrador Liquor unanimously held that the criminal burden of proof beyond reasonable doubt applied. However, as Hayne J also noted, where the proceedings did not seek or result in a conviction, a different approach might be required: at [135].

30 While this Court has exercised jurisdiction in relation to appeals in similar proceedings on a number of occasions without comment, its judges have also sat in the Court of Criminal Appeal and exercised jurisdiction on appeal from similar proceedings in a Local Court. Although there are separate procedural provisions in ss 247 and 248, it might seem curious if appeals were to be brought in the criminal jurisdiction from a conviction in a court of summary jurisdiction, but in the civil jurisdiction where the conviction was in the Supreme Court and, possibly, in the District Court (or County Court) but only when exercising original jurisdiction. It is also curious that such a dichotomy has been accepted without comment. One possible reason for the failure of the Customs Act to make clear the nature of the appellate jurisdiction in relation to the Supreme Court may have been that, in 1901, there were no separate statutory provisions in Australia with respect to criminal appeals.

31 It is at least theoretically possible that two forms of appeal are available, the aggrieved party having the power to choose. However, that result would appear anomalous and was not proposed by either party in the course of argument. Furthermore, it would be inconsistent with the scheme of the Judiciary Act. Both ss 79 and 80, which provide for the application of State laws applicable in relevant proceedings, are qualified to the extent that, in the language of s 79, there must be no Commonwealth law which has "otherwise provided". Alternative provision may be made by a Commonwealth law which expressly addresses the subject matter of the State law, or it may be made by another Commonwealth law picking up and applying a State law. Sections 79 and 80 may thus be seen as 'back up' provisions to ensure that there is no failure of procedural or substantive law available in the exercise of federal jurisdiction: see, eg, The Commonwealth v Mewett (1997) 191 CLR 471 at 522 (Gaudron J); and at 554 (Gummow and Kirby JJ). In the present case, that would require first the application of s 68, in relation to laws of a State respecting the procedure for the hearing and determination of appeals arising out of a summary conviction of a person charged with an offence: see s 68(1). However, the State laws will only operate "so far as they are applicable" and accordingly it is necessary to return to the proper construction of the State law which in this context, will be s 5AA of the Criminal Appeal Act.

32 If the order of the trial judge, despite involving convictions, is a civil judgment or order of the Court in a Division, the appeal will lie to this Court pursuant to s 101(1) of the Supreme Court Act 1970 (NSW), as applied in federal jurisdiction by ss 79 and 80 of the Judiciary Act. A judgment or order to which s 101 applies will not, however, include one made in proceedings specified in the Third Schedule of the Supreme Court Act. The Third Schedule excludes:

"(a) proceedings in the Court for the prosecution of offenders on indictment ('indictment' including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted."

33 The concept of an 'information' in this context should be understood as extending to the means by which a public prosecution is commenced, seeking a conviction for an offence: see John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; Ove Arup Pty Ltd v Industrial Court of NSW [2006] NSWCA 28; (2006) 149 IR 193. Nevertheless, because the exclusion from civil jurisdiction effected by the Third Schedule identifies proceedings by way of the means of their commencement, it is arguable that the present proceedings, commenced by civil process, are not excluded. On the other hand, proceedings in the summary jurisdiction of the Supreme Court are commenced by application, rather than information: see Criminal Procedure Act 1986 (NSW), s 246. A conviction under Part 5 of Chapter 4 of the Criminal Procedure Act (dealing with the summary jurisdiction of Supreme Court and other higher courts) is "taken for all purposes ... to be a conviction on indictment" and attracts the appellate jurisdiction of the Court of Criminal Appeal, pursuant to s 5AA of the Criminal Appeal Act. That section provides:

"5AA Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction

(b) against whom an order to pay any costs is made,

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order."

34 Three factors militate in favour of the view that the right of appeal applicable under State law in the present case is to the Court of Criminal Appeal. The first is that, as noted above, the terms of the Judiciary Act require one to consider first laws of the State respecting the summary conviction of persons charged with offences and the hearing and determination of appeal arising out of any such trial or conviction: s 68(1). By contrast, s 79 of the Judiciary Act, which would pick up civil rights of appeal, if applicable, must give way to another Commonwealth law which otherwise provides and which would include s 68. The opening words of s 80 have a similar qualification to s 79.

35 Secondly, an appeal against a "conviction" naturally falls within the language of Part 3 of the Criminal Appeal Act, but would not ordinarily be seen as falling within the phrase "judgment or order" as used in s 101 of the Supreme Court Act, in relation to civil jurisdiction.

36 Thirdly, consistency would favour treating parties in the same way in whichever court the proceedings were commenced. If the second limb of s 248 operates at all, it would appear to pick up appeal provisions relating to criminal offences by use of the term "conviction", at least in relation to appeals from courts of summary jurisdiction. If it applies generally, the State law with respect to appeals from convictions should be the law which would operate, either by force of s 248 itself or s 68 of the Judiciary Act.

37 The contrary considerations are twofold. The first is that ss 247 and 248 of the Customs Act, as originally enacted, adopted civil procedures in relation to the superior courts and provisions relating to summary proceedings (a phrase generally associated with the criminal process) in the lower courts. Thus procedural consistency was not intended and it would not be anomalous if appeal rights were to vary depending upon the court in which the proceedings were commenced. Secondly, for s 5AA of the Criminal Appeal Act to apply, it would be necessary to conclude that the conviction was effected by the Supreme Court "in its summary jurisdiction". That language is apt to refer to the conferral of summary jurisdiction by s 245 of the Criminal Procedure Act. However, s 247 of the Customs Act does not (and never did) permit the commencement of proceedings in the Supreme Court under the Criminal Procedure Act (or any earlier equivalent), but rather under the civil procedures of the Supreme Court Act (and its predecessors). That, however, was not in terms part of the jurisdiction conferred on the Court of Criminal Appeal with the introduction of s 5AA by the Criminal Appeal (Crimes) Amendment Act 1979 (NSW): in relation to the legislative history of the Court's summary jurisdiction, see Ove Arup Pty Ltd v Industrial Court of NSW [2006] NSWCA 28; (2006) 149 IR 193 at [48]- [54].

38 In short, under State law, rights of civil appeal are determined not by the nature of the result (whether a conviction or other form of order) but by the manner of instituting proceedings, pursuant to the exclusions contained in the Third Schedule of the Supreme Court Act. The Customs Act requires that proceedings be commenced by civil process. It follows that, whatever the nature of the orders made in the Common Law Division, the right of appeal will arise under the Supreme Court Act. Although s 5AA of the Criminal Appeal Act would in terms appear to cover the kind of orders made in the present case, it was introduced to address other circumstances and with a different jurisdiction in contemplation.

39 The preferable conclusion, on the materials before the Court, is that the appeal was properly instituted in this Court. That conclusion follows practice in this State as revealed in the authorities set out above. However, it is desirable to note by way of reservation that the history of the Customs Act was not fully explored in the course of argument and that neither party contended for a different result.

40 Her Honour handed down three judgments, each having the same title, the first being Comptroller-General of Customs v Parker [2006] NSWSC 387 (dealing with the admissibility of evidence following a voir dire); the second Comptroller-General of Customs v Parker [2006] NSWSC 390 (pursuant to which the Appellant was convicted) and Comptroller-General of Customs v Parker [2006] NSWSC 1269, pursuant to which her Honour imposed a penalty of 3.25 times the amount of duty evaded (being an amount a little in excess of $10 million), a penalty of $12,000 in respect of the unauthorised movement of goods and further ordered the defendant to pay the costs of the proceedings. The grounds now pressed all relate to the admissibility of the evidence (being substantially the whole of the evidence upon which the charges were prosecuted) pursuant to s 138 of the Evidence Act 1995 (NSW). No separate challenge was pursued in relation to the reasons for conviction or mounted in relation to the penalty, although both would properly be set aside if the evidence were held to be inadmissible.

41 As explained above, the charges against Mr Parker arose out of a major investigation undertaken by customs officers in relation to the "extension" of brandy. That investigation led to the issue and execution of a search warrant pursuant to s 214 of the Customs Act and the seizure of a large quantity of documents from Lawpark. The charges ultimately laid did not relate to offences under the Spirits Act 1906 (Cth) in relation to brandy, but rather 13 charges relating to evasion of duty payable under the Customs Act, and one charge of unauthorised movement of goods subject to customs control, under s 33(1) of the Customs Act. Of the 13 evasion charges, 11 involved duty in an amount of $143,259.26, another involved an amount of $90,457.95 and the final charge involved an amount of $1,447,061.70, giving a total amount of duty evaded as $3,113,371.40. The offences were committed over a period of almost three years between August 1987 and May 1990. The liquor in relation to which duty was evaded was whisky, and not the brandy the subject of the initial investigation.

42 The circumstances of the initial investigation are of relevance for present purposes in specific respects only. At the heart of the Appellant's case were complaints as to the unlawfulness of the steps which preceded the request for and search and seizure of documents on 6 March 1990. In order to appreciate the nature of the improper conduct alleged and the manner in which it was dealt with by the trial judge, it is convenient to deal first with the search powers conferred by s 214 of the Customs Act; secondly with the proper approach to exclusion of evidence under s 138 of the Evidence Act; and thirdly with the factual findings and application of the principles to the relevant findings.

Search powers: Customs Act, s 214

43 In March 1990, both the Customs Act and the Spirits Act were administered by the Comptroller-General of Customs: see Spirits Act, s 2A. The investigation into the extension of brandy could have given rise to offences under the Spirits Act. Although there was a particular power to enter premises and take samples pursuant to s 22 of the Spirits Act, general powers of investigation were to be found in the Customs Act, the relevant Parts of which were incorporated into the Spirits Act, so far as applicable: Spirits Act, s 4. The incorporation of Parts XI-XV included Part XII (conferring powers on officers) and thus s 214 which read as follows:

"Production of documents etc in cases of seizure

214. (1) Whenever information in writing has been given on oath to the Collector that goods have been unlawfully imported exported undervalued or entered or illegally dealt with, or that it is intended to unlawfully import export undervalue enter or illegally deal with any goods, or whenever any goods have been seized or detained, the owner shall immediately upon being required so to do by the Collector produce and hand over to him all books and documents relating to the goods so imported exported entered seized or detained undervalued or illegally dealt with, or intended to be unlawfully imported exported undervalued entered or illegally dealt with, and of all other goods imported or exported by him at any time within the period of 5 years immediately preceding such request seizure or detention, and shall also produce for the inspection of the Collector or such other officer as he may authorize for that purpose and allow such Collector or officer to make copies of or extracts from all books or documents of any kind whatsoever wherein any entry or memorandum appears in anyway relating to any such goods.

(2) For the purposes of this section, the Comptroller or the Collector of Customs for a State or Territory may issue to any officer of Customs or officer of police a Customs Warrant, in accordance with the form in Schedule V, marked with a Customs stamp.

(3) If any person fails to comply with a requirement by the Collector under this section, an officer of Customs or officer of police, having with him a Customs Warrant in the form of Schedule V hereto, may, at any time of the day or night, break open and enter into any house, premises or place in which any books or documents relating to the goods are or are supposed to be, and search:

and take possession of, remove and impound any of those books and documents which are found."

44 The first step envisaged by s 214 is the provision of information on oath to the Collector. That officer is defined as "any principal officer of Customs": s 8(1). The information must relate to some unlawful dealing with goods. The goods and the dealing may be assumed, for present purposes, to refer to such goods and dealings as are dealt with under the Customs Act or the Spirits Act.

45 The second step involves a requirement by the Collector that "the owner" produce and hand over books and documents. The term "owner" in respect of goods is broadly defined to include any person "being or holding himself 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": s 4. There is no power of delegation in relation to functions of the Collector, so that any requirement made by the Collector of an owner, if not made by the Collector in person, must be made in writing. The Regulations provide for a form of "notice to produce documents under section 214": Customs Regulations, reg 171. The form of the notice recited the information in writing, or the seizure of goods and stated:

"Now, therefore, I, the Collector of Customs for the State of , by virtue of the powers conferred upon me by the Customs Act 1901, do hereby require you to produce and hand over to an officer of Customs duly authorized by me on my behalf to receive the same, all books and documents relating to such goods and relating to all other goods imported (or exported) by you at any time within the period of five years immediately preceding this request, and I further require you to produce for the inspection of the said an officer of Customs duly authorized by me for that purpose or such other Officer as I may authorize for the purpose, and allow such Officer to make copies of or extracts from all books or documents of any kind whatsoever wherein any entry or memorandum appears in any way relating to any such goods."

46 The obligation of the owner required by the Collector to produce and hand over books and documents was to comply "immediately" with the requirement. A failure to comply triggered the power of the officer to execute a customs warrant in accordance with sub-s 214(3). The form of that warrant, found in Schedule V to the Act, recited the giving of information on oath or the seizure of goods and continued:

"You are hereby authorized, in the event of failing to comply immediately with any requirement made in pursuance of section two hundred and fourteen of the Customs Act 1901-1923, to enter into, at any time of the day or night, and search, any house premises or place in which any books or documents relating to the goods are or are supposed to be; and to break open any such house premises or place and search any person therein or thereon and any chests trunks or packages therein or thereon; and to take possession of, remove and impound any of those books and documents which are found: And for so doing this shall be your sufficient warrant."

47 Despite changes in the structure, the Schedule V warrant replicates the powers set out in sub-s 214(3). The powers of search and removal are restricted to "any books or documents relating to the goods", language which may also be found in s 214(1). However, the words "the goods" appear in four passages in sub-s (1). In the first, the word "goods" are limited to those that have been or are intended to be unlawfully dealt with or seized or detained. This may be identified as the introductory part of the provision. The first operative part, applying to books and documents, is the obligation to produce and hand over books and documents "relating to the goods" which, in its context, is clearly a reference back to the goods which have been the subject of written information or have been seized or detained. The second operative provision appears to pick up another category of books and documents relating to (although the connector is "of") "all other goods imported or exported by him at any time within the period of five years immediately preceding such request seizure or detention". These, it seems, are colloquially referred to as the 'five year documents' but might more accurately be referred to as documents relating to 'the five year goods'.

48 There then follows a third category of documents "wherein any entry or memorandum appears in any way relating to any such goods". The third category appears to envisage a distinction between documents relating to goods and those documents in which an entry or memorandum appears, where the entry or memorandum relates to the goods. (This differentiation was explicit and must have been intentional or the third category of documents would merge into the first.) Books and documents falling into the third category are to be produced for inspection, copying or the preparation of extracts, but, in contra-distinction to the first two categories, are not required to be handed over. The question is whether the reference to "any such goods" in relation to the third category refers only to the goods which were the subject of the written information, or includes the goods imported or exported during the previous five years. The structure of the section, together with the broad language, indicates that both the goods the subject of the written information and the five year goods were intended to be included in the phrase "any such goods".

49 Subsection (3) is in more confined terms. As already noted, it addresses books or documents "relating to" the goods. To the extent that sub-s (1) distinguishes between books and documents "relating to" goods and those containing entries or memoranda relating to goods, it is the former and not the latter which may be the subject of a customs warrant. However, that does not resolve the question as to whether the warrant is restricted to the goods identified in the written information or extends to all other goods imported or exported within the five year period. One possible point of distinction between the first and second categories of documents identified in sub-s (1) is that the former involves documents relating to the goods identified in the information whereas the second category appears, grammatically, to refer to documents "of" all other goods. This change in terminology is curious, but should not be understood as creating some different category of books and documents. However, once it is accepted that the subject matter of the requirement under sub-s (1) is books and documents relating to one of two categories of goods, it is difficult to see why the reference to books and documents relating to "the goods" in sub-s (3) should not relate to all of the documents (by reference to both categories of goods) identified in sub-s (1). To divide the documents into two categories would have curious results. Thus, an owner who handed over documents relating to the goods referred in the written information, but refused to provide further documents, would fail to comply with the requirement in sub-s (1), thus triggering the right to execute a warrant under sub-s (3). The purpose of sub-s (3) is to ensure that, absent voluntary compliance, the warrant will permit a search by officers to obtain books or documents falling within the requirement which have not been supplied. To construe the category of books and documents in sub-s (3) as more limited than the books and documents referred to in sub-s (1) would be to defeat the purpose of sub-s (3) in circumstances where only a handful of the documents the subject of the requirement had been provided, but sub-s (3) was found to be restricted to that very handful.

50 A different view was taken by Dunford DCJ in In the matter of O'Neill (NSWDC, 18 August 1988, unrep). His Honour held that the only documents which could be seized under the warrant were those relating to the goods which were the subject of the written information: Judgment, p 12. In reaching that conclusion, his Honour expressly adverted to the construction of s 214, set out above, recognising that the argument appeared "valid": Judgment, p 11. He also accepted that to adopt the more limited construction of s 214(3) suggested "an absurdity": p 12. However, he thought the alternative construction was compelled by the form of the warrant prescribed by sub-s 214(2) and Schedule V. The form of the warrant requires express reference in its recital to the goods the subject of the written information or which have been seized or detained. Where, in the operative part of the warrant, reference is made to searching the house in which any "books or documents relating to the goods" are supposed to be and taking "those books and documents", his Honour considered that the reference to documents relating to "the" goods must have been a reference to the goods identified in the recital to the warrant.

51 The force of that argument may be conceded: nevertheless, the warrant also refers to failure to comply with "any requirement" made pursuant to s 214. That requirement would involve documents relating to two categories of goods, namely the goods identified in the written information and all other goods imported or exported within the preceding five years. Although the warrant, in its recital, referred to the justification for the requirement (sometimes colloquially identified as the 'notice to produce') it also expressly identified the failure to comply with the requirement as the factor which triggered the obligation under the warrant. That requirement, as already noted, extended to documents relating not only to goods the subject of the written information, but to all goods imported or exported during the preceding five years. The recipient of the warrant would have been conscious of the scope of the requirement and hence the categories of the goods to which the documents sought related. No doubt the warrant could have set out the terms of the requirement in full and thus achieved greater certainty in the terms of its authority. However, the failure to expand the document in that manner does not justify the imposition of an anomalous constraint on the scope of the statute. Nor, as a matter of practical reality, should the recipient of the warrant expect that the warrant would be more limited than the requirement to produce and handover documents, with which he or she has immediately previously failed to comply.

52 The result of this construction is that there is a lacuna in relation to the enforcement mechanism with respect to the third category. However, that category did not involve documents "relating to" any goods, but only documents containing entries or memoranda relating to the goods. The Collector was in any event given more limited powers in relation to those documents. Subsection (3) was confined to documents which could be taken possession of, removed and impounded, in accordance with the requirement under sub-s (1) and did not extend to documents which could only be inspected and copied. In that sense it may be said that a failure to comply with the requirement under sub-s (1) might trigger the execution of a warrant, despite the fact that all the documents relating to the goods had been produced, with the result that nothing further would be seized under the warrant. However, that minor anomaly, if it be seen as such, would not justify the creation, without any substantial justification, of the far greater anomaly of excluding what are likely to be the major part of the documents relating to goods which were required to be produced and handed over under sub-s (1). If the searcher were entitled to inspect and copy documents in the third category, no anomaly would arise.

53 As will be noted below, the trial judge accepted the conclusion reached by Dunford DCJ in O'Neill: [2006] NSWSC 387 at [24], [25] and [39]. In my view that construction was mistaken.

Exclusion of evidence: Evidence Act, s 138

54 Before considering further the factual circumstances relevant to the appeal, it is convenient to consider the basis on which it was sought to exclude the documentary evidence obtained by execution of the warrant. That was sought pursuant to s 138 of the Evidence Act, which provides as follows:

"138 Exclusion of improperly or illegally obtained evidence

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."

55 One difficulty in the construction of s 138(1) is the distinction between conduct which is improper and conduct which is unlawful. Apart from some possible variation in the closeness of the causal connection, there does not appear to be any significant distinction between evidence obtained in contravention of an Australian law and evidence obtained in consequence of a contravention of an Australian law, being the second limbs of pars (a) and (b) respectively. The same intention should be attributed to the first limb of each paragraph, so that there is no significant difference between obtaining evidence improperly and obtaining evidence in consequence of an impropriety. The real issue is to identify the scope of an impropriety which will result in the qualified exclusion of evidence where there has been no unlawfulness, in the sense of a contravention of an Australian law. Putting aside confessional evidence, which is dealt with in sub-s 138(2), the best known example of improper conduct, not amounting to unlawfulness, is the action of an agent provocateur or person who induces another to commit a crime through subterfuge or trickery. This situation was discussed in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 and, for the purposes of s 138, in Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612 at [16]- [38].

56 There may be circumstances in which it is not the commission of the crime itself, but the obtaining of evidence of an antecedent crime which is attended by trickery or deception, not amounting to a contravention of a legal prohibition. For example, a police officer may induce the occupant of premises to allow a search to be undertaken voluntarily, in the false belief, induced by the officer, that he or she had a warrant which could be relied upon if consent were not forthcoming. Improper conduct may also occur in circumstances where a police officer has a warrant and seeks to exercise a search based on its authority, knowing that the warrant was for some reason invalid. One can envisage variations on the theme: the warrant may in fact have been invalid for reasons which the police should have been aware of, but were not. The warrant may in fact have been valid, but was believed by the officers to be invalid. Further consideration of such examples need not be pursued in the circumstances of this case.

57 The exercise of the discretionary power conferred by this provision involves two steps. The first is to determine whether evidence sought to be adduced was in fact obtained improperly or unlawfully in one of the senses identified in pars (a) and (b). The second step is to consider whether despite that conclusion, the discretionary considerations favour its admission. The importance of giving appropriate weight to the effect of any impropriety or unlawfulness is reflected by means of a qualified proscription - the evidence "is not to be admitted unless". In carrying out the balancing exercise, the Court is required to take into account the factors identified in sub-s (3) in the following terms:

"(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."

58 Other factors, relevant to the circumstances of the case, may be taken into account, but the listed considerations are mandatory. No guidance is given in the section as to how the particular matters are expected to affect the outcome. It is clear from the Law Reform Commission report on which the legislation was based that both the policy and the language were derived in significant part from the joint judgment of Stephen and Aickin JJ in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74-80: Australian Law Reform Commission, Report No 26 (Interim) Evidence, pars 958-964. Their Honours identified the issue as involving two competing requirements of public policy and the need "to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law": at 74. Often the unlawful conduct involves the collection of evidence in contravention of constraints deliberately imposed by the legislature to protect human rights and freedoms. Their Honours noted at 77-78:

"These safeguards the executive and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm."

59 In considering the circumstances before them in Bunning v Cross, which involved the admissibility of the results of a breathalyser test where the statutory preconditions for undertaking the test had not been met, their Honours identified the primary consideration as whether the police officers had acted in deliberate disregard of the law or rather as the result of an honest but mistaken belief: at 78. Their Honours noted:

"Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it."

60 This factor is reflected in paragraphs (d), (e) and (f) of s 138(3). Accordingly, a deliberate or reckless disregard of legal constraints, involving a contravention of an internationally recognised human right or fundamental freedom, will undoubtedly weigh against admission. On the other hand, if the contravention were accidental or inadvertent and involved no serious contravention of an internationally recognised right, that would tend in favour of admission.

61 Paragraph (h), concerning the ease with which the evidence might have been obtained without contravening a legal protection, was treated in Bunning v Cross as a third consideration, but is closely related to the first, their Honours stating (at 79):

"A deliberate 'cutting of corners' would tend against the admissibility of evidence illegally obtained. However, in the circumstances of the present case, the fact that the appellant was unlawfully required to do what the police could easily have lawfully required him to do, had they troubled to administer an 'alcotest' at the roadside, has little significance."

As in Bunning, it is likely that this factor will often be treated as either neutral or equivocal.

62 The second consideration identified in Bunning v Cross was the effect of the illegality on the cogency of the evidence. This factor does not find explicit recognition in s 138(3), but may be understood as part of the assessment required under pars (a) and (b) of the probative value of the evidence and its importance in the proceedings. The Law Reform Commission, following Stephen and Aickin JJ, noted that the public interest in admitting evidence where other evidence untainted by impropriety is available is weaker than may be the case where there is no untainted evidence. However, the analysis by the Commission in relation to probative value generally, is that the higher the probative value of the evidence the greater the public interest in its admission, in the interests of accurate fact-finding: Report, Vol 1, par 964. However, Stephen and Aickin JJ adopted a somewhat different approach, stating at p 79:

"To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. ...

Where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had."

63 The weight to be given to these considerations cannot be resolved in the abstract and is likely to depend not only on the circumstances of the case but on the interplay between the different factors. Thus, the subject matter of the proceeding, identified in par (c), will provide both an independent and a comparative element. As an independent element, as the Commission noted, there is a greater public interest in convicting of a serious crime than of a lesser crime: see also R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169. In the comparative sense, it allows for the nature of the alleged wrongdoing to be weighed against the unlawfulness of the conduct involved in obtaining the evidence: see Bunning v Cross, p 80. Thus the probative value of the evidence and its importance in the proceeding (pars (a) and (b)) if high in each case, combined with a serious criminal offence (par (c)), may militate strongly in favour of admission, particularly if combined with an affirmative finding as to the difficulty of obtaining the evidence without impropriety or contravention of the law (par (h)).

64 Paragraph (g) concerns possible disciplinary or other action in relation to the misconduct in obtaining evidence. If a police officer is likely to be disciplined for the impropriety, it may be thought that the "sanction" of excluding the evidence is unnecessary; on the other hand, there may be some incongruity in convicting a person of a criminal offence on the basis of evidence where a disciplinary or even criminal process has been invoked against the officer responsible for obtaining it. Further, it will not always be possible to know whether disciplinary proceedings are likely to be taken: such steps may deliberately have been left until after any criminal proceedings have been completed, so as not to prejudice their outcome. Clear findings in a judgment of contravention of a relevant law may lead to disciplinary proceedings against the offending officer, whether or not the evidence was excluded. No reliance was placed on paragraph (g) in the present case and it need not be considered further.

65 What can be said without equivocation is that obtaining evidence in deliberate, wilful or even reckless disregard of an individual's civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence.

66 Against these general comments, it is convenient to turn to the circumstances in which it is contended that s 138 was engaged. They may be addressed chronologically.

(a) Decision to pursue investigation through s 214

67 The first basis of impropriety alleged by the Appellant was the choice of s 214 as the preferred method of obtaining documents from the Appellant, rather than proceeding under s 10 of the Crimes Act 1914 (Cth) and obtaining a search warrant for particular documents or things.

68 The availability of an alternative power may well have been relevant to the difficulty or ease with which the evidence could have been obtained without impropriety or contravention of an Australian law for the purposes of s 138(3)(h). However, the existence of an alternative procedure does not of itself demonstrate impropriety in the adoption of the chosen procedure: c.f. Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, 407-408. The initial question must therefore be whether the procedure chosen was in fact available in the circumstances. The complaint made at this stage is not that it was unavailable, but that Customs had available to it legal advice that it was unavailable. There was thus impropriety, so it was contended, in relying upon a statutory power which, absent contrary advice, should have been understood to be unavailable.

69 The legal advice, dated 27 October 1989, was obtained by the Collector of Customs for the State of New South Wales, in relation to the operation of Kingswood Distillery Pty Ltd ("Kingswood"). As the advice noted, the suspected offences involved claims by Kingswood, thought to be false, as to the volume of spirit which it purchased and subjected to a process of methylation, as a result of which the spirit ceased to be dutiable. The Collector and his officers had reason to believe that the spirit so treated was sold to Breven which used it to "extend" brandy, as described above. In that context, counsel expressed the view that s 214 did not extend to unlawful activities in contravention of the Excise Act. While he specifically referred to the manner in which s 4 of the Spirits Act 1906 picked up particular provisions of the Customs Act, including s 214, and noted the possibility of an offence against s 9(1)(b) of the Spirits Act, he concluded that, on the instructions available to him, it was not possible to say whether there had been a contravention of s 9(1)(b), which required that activities be undertaken in relation to interstate trade and commerce. However, he concluded that "in so far as it is possible to establish an offence under the provisions of the Spirits Act the Collector would be authorised to issue a notice under section 214 by virtue of the provisions of section 4 of the Spirits Act ... . The effect of a provision such as section 4 is that the incorporated statutory provisions are treated as being set out in full in the incorporating Act .... Standing in the Spirits Act, the expression 'illegally deal with' in s 214 is apt to include dealing with the goods contrary to the provisions of that Act".

70 On 16 January 1990, a customs officer swore a document providing information to the effect that two bottles of "Cheval Napoleon old French brandy" bearing a label "Imported by Lawpark Pty Ltd" had been purchased in Richlands, Queensland. Chemical analysis demonstrated that the spirit within the bottle included spirit produced from grain or molasses and that the bottle was therefore incorrectly labelled as "brandy". A contravention of s 9(1)(b) of the Spirits Act was alleged.

71 On the basis of that information, reliance upon s 214 of the Customs Act was entirely consistent with counsel's advice. Whether he was correct in thinking that s 214 did not extend to a breach of the Excise Act was, in the circumstances, beside the point. The basis for saying that Customs ignored counsel's advice is therefore not apparent. Any complaint of impropriety on this basis should have been rejected.

72 The trial judge expressed the following view in relation to counsel's advice:

"30. Relevantly, the gist of the advice was that an illegality against the Spirits Act would not suffice to permit the use of a Notice to Produce under s 214(1). For present purposes it is unnecessary to explore his reasoning. His advice was given in strong terms, as follows:

'So doubtful is it in my mind that s 214 can in the last resort assist the Collector that it seems to me that the only safe course, that would enable the Collector to obtain documents from the relevant parties before they could be destroyed without substantial doubts as to the legality of his actions, would be to obtain a search warrant under the provisions of s 10 of the Crimes Act ...'

31. It appeared, on the present hearing, to be common ground that this opinion was incorrect. For my part, I can see no reason why an illegality under the Spirits Act would not constitute an illegal dealing for the purposes of s 214. However, it is not necessary to resolve that question."

73 With respect, neither limb of this approach should be accepted. First, the advice clearly envisaged that s 214 would be available on facts which supported suspicion of an offence under the Spirits Act. The information which would support such an offence was apparently not provided to counsel and was only reduced to a sworn instrument on 16 January 1990, well after counsel gave his advice. As explained above, counsel expressly envisaged the use of s 214 where the circumstances established an offence under the Spirits Act. Secondly, it was important, for the purposes of the voir dire to resolve, if not the correctness of the opinion, at least the legality of the reliance on s 214. The Appellant's position, as explained in this Court, was not that the opinion was incorrect, but that its correctness was immaterial. However, it was not possible properly to apply s 138(3) of the Evidence Act, and in particular consider the gravity of the impropriety or contravention, until it had been established whether there was a mere impropriety or whether there was unlawful conduct, and if unlawful, in what respects.

74 In the course of the voir dire, the Appellant engaged in extensive examination of various customs officers, for the apparent purpose of establishing that counsel's advice had not been provided to the Collector of Customs for New South Wales before he signed the written request for production of books and documents and before he signed the customs warrant. However, the sting in this attack really depended upon the power being unavailable and being known to be unavailable to responsible officers who then deliberately or recklessly failed to advise their superiors. If the power was in fact available, the complaint that they failed to pass on incorrect advice to the contrary would have lost much of its sting. If the power were available and the advice which was not passed on was to that effect, the whole basis of this challenge disappeared and the extensive cross-examination about the internal processes within the Customs bureaucracy was, to that extent, misconceived and inappropriate.

75 To take an example, the former Collector of Customs for New South Wales, Mr Keith Stilling, was cross-examined at some length on 12 April 2005 in relation to the issue of the documents. He had retired in 1993 and had almost no recollection of the events which had occurred 15 years earlier: Tcpt, p 74(3) and 75(5). Mr Stilling was asked to read counsel's advice and in particular the passage set out by her Honour at [30], repeated above. He was then asked to confirm, on the basis of that paragraph, that had he read it prior to signing the customs warrant under s 214 in March 1990, he would not have signed the document: Tcpt, pp 77(40)-(55) and 78(30)-(40).

76 The trial judge held that it would quite obviously have been "better" had counsel's advice been disclosed to Mr Stilling before he signed the instruments: at [35]. However, as her Honour also noted, if the failure to draw the advice to Mr Stilling's attention was partly caused by the "serious and well-founded doubts about its accuracy" the force of the complaint was, as her Honour held, much diminished. It was open to her Honour, on her understanding of the advice and the evidence given, to reject the suggestion that there was "any dishonourable or dishonest motive on the part of any officer": at [35]. If the advice were both correct and, when read as a whole, supportive of the course taken by Customs, the scope for any dishonourable or dishonest motive effectively disappears. The Appellant's case in this respect depended upon selective extracts from contemporaneous documents which, when read in context, provided no basis for the suggested impropriety or unlawful behaviour.

77 Assuming that the procedures under s 214 were available in the circumstances of the case, the Appellant then challenged the issue of the notices on the basis that the purpose of the request or requirement was not to obtain the production of documents, but rather to trigger the entitlement to execute the warrant. This challenge was linked, in a practical sense, with the complaint that the request having been made, insufficient time was allowed for compliance and that non-compliance was assumed in circumstances where it had not occurred.

78 For the purposes of this argument, the Appellant accepted that customs officers were of the view that their powers of search under the warrant were co-extensive with the obligation to produce documents pursuant to a request or requirement of the Collector. Whether that view was correct or not was not in issue for the purpose of this challenge.

79 Some time was spent in cross-examining customs officers, seeking concessions that they believed it would be beneficial to their purposes if the requests for production were not complied with, so that the warrants could be executed. Some support for the view that such a belief was extant was sought to be obtained from memoranda and file notes prepared by Peter Swinton, a principal legal officer with the Australian Government Solicitor.

80 The first document, dated 31 January 1990, was a file note of an attendance on Jeffrey Locker who was the NSW Director of Investigations within Customs. The passage relied upon stated:

"They are going to do it over at the end of month on basis of the use of the Interstate Spirits Act breach/s214 Notice. He asked whether a night raid would be preferable but said they have 15 houses they want to raid so had decided on a 9am kick-off so they won't have to get people up in their pyjamas."

81 On 5 February 1990, Mr Swinton made an attendance note in relation to the same matter, although there is no record of the person or persons with whom he spoke. The substance of the note, as it appeared in evidence, was as follows:

"Excisable goods are used to extend. (Records) Want to grab all those excisable documents.

Need to use circumstantial evidence: too many caps, labels, cartons and packaging would like to take all those records.

(Would not) evidence of bottles purchased for the packaging of imported goods be records of imported goods? The basis for an s214 Notice is that imported goods are extended with local product."

82 Those documents provide no support for any improper purpose. They were notes of on-going discussions between Mr Swinton and customs officers which also covered technical difficulties of reliance upon copies of warrants sent by facsimile. Other legal problems were addressed over the ensuing days. A key file note relied upon by the Appellant was that prepared on 26 February 1990 of a conference with Mr Mutton, Senior Inspector, Investigations and Mr Benson, Chief Inspector, Investigations. Part of the conversation related to the ability to execute a warrant at premises other than those to which the notice related. Mr Swinton's note recorded under the "Schedule V warrants on non-compliance":

"I said: if you go to Kingswood on s214, and non-compliance warrant invoked at Kingswood, can go at any place. (Based on AGS Adelaide opinion.) Ron [Benson] said AGS Adelaide had said you could go to any place suspected. I agree at first sight. But no good if compliance is given and that's part of the problem. I suggested extra 214 Notices be kept in reserve and used if and only if compliance given."

83 If one leaves out the last sentence of that extract (as did the Appellant's written submissions) there might be an inference drawn that compliance with a request to produce documents would create a "problem": however, read in context, it appears that the perceived problem was the ability to search premises other than the premises at which there had been compliance.

84 On 27 February 1990 Mr Swinton had another conversation with Mr Benson at which various problems relating to the statute under which the relevant offences might have arisen and the extent to which one company or person was an agent of another, were discussed. A passage at the foot of the file note, read as follows:

"The Notice to Produce and s214 doesn't ask them, however, to produce all docs relating to goods 'illegally dealt with'. I said that's because it's seeking a total admission thereby - who could comply. Unfortunately he says it could be answered, in absence of importing business, by docs relating to 20% of one 750 ml bottle!!"

85 The thrust of this discussion appears to have been a concern on the part of Mr Benson that the request itself did not require the owner of the goods to identify all documents revealing illegal dealings. Mr Swinton provided a lawyer's explanation. The view expressed by Mr Benson that the notice could be complied with by producing documents in relation to the contents of one bottle was misconceived, for two reasons. The first (which constitutes another part of the Appellant's case) was the difficulty in identifying the particular bottle. The second was that he ignored the obligation to produce documents relating to goods dealt with during the previous five years. By itself, it is difficult to see any inference of an improper purpose being drawn from this record. Rather, what is conveyed by the file notes as a whole is a picture of customs officers faced with a legally and factually complex situation seeking to resolve a range of potential difficulties with their solicitor.

86 What further assistance could be obtained from the oral evidence of the solicitor, Mr Swinton, was somewhat unclear, but significant reliance was placed on it for the purposes of the appeal and in particular the cross-examination on 13 April 2005 at Tcpt 169-178. At p 170(45) the following exchange occurred:

"Q. Now, would it be fair to say that Customs' desire in these kinds of cases was such that it preferred non-compliance so that it could exercise the warrant and send in its officers to search for the documents which it believed would assist its case?

A. I can't be sure exactly what they want, but I can see that would be of advantage to them."

87 There was further questioning along similar lines, in the course of which Mr Swinton said that he could not recall the events without reference to his notes; that he could not now understand his notes in part; that his recollection of the understanding of the scope of a request under s 214(1) appeared to be incorrect; and, consistently over several attempts to obtain a different answer, that he did not know what Mr Benson and Mr Mutton were thinking.

88 The Appellant also relied upon the cross-examination of Mr Locker, the State Director of Investigations, on 14 April 2005, Tcpt, pp 276-277. The submission that "the cross-examination proceeded on the basis that the wide forensic powers afforded by the warrants constituted an advantage" is correct, as was the assumption that there needed to be non-compliance with the request before the warrant could be executed. However, unless the cross-examiner obtained some form of useful concession from the witness, the basis upon which the questions were put is a matter of no relevance. Her Honour was entitled to ignore it.

89 The Appellant took issue with her Honour's comment:

"The point of this was that it was suggested that they had engineered non-compliance with the Notice to Produce in order to enliven the warrant powers. As I have indicated, I see no benefit such as to motivate any of the officers to take this course."

As her Honour also noted, "[n]o such advantage was elicited during the course of the extensive cross-examination of all officers": at [37]. On the basis that the scope of the request and the extent of the search permitted by the warrant were co-extensive in respect of the documents sought, her Honour's comment is understandable. If there were voluntary compliance, the officers would obtain all the documents which they would be entitled to obtain by way of search (and, in relation to the third category, possibly more). If they believed there had not been full compliance, they would no doubt search for documents not produced. There might of course be a circumstance in which there was the appearance of compliance, but they entertained doubts. In such a situation there might be a desire to carry out a search to check whether there had been compliance, but an inability to do so because they were unable to be satisfied to the appropriate degree that there had been non-compliance. However, that does not appear to have been the point of the cross-examination, or the Appellant's submissions. No further enlightenment is to be achieved by referring to the pages in the cross-examination of Mr Mutton (Senior Inspector, Investigations) who was the leader of a team of customs officers who visited the Lawpark premises in Wetherill Park on 6 March 1990: Tcpt, 14/04/05, pp 213-219; nor does the cross-examination of Mr Locker: Tcpt, 14/04/05, pp 275-277. The grounds relevant to this challenge should be rejected.

(c) Reference to offence in notice to produce documents

90 The complaint in this respect was that the notice to produce documents merely identified the goods to which the documents related as a bottle of spirits labelled "Cheval Napoleon Old French Brandy", illegally dealt with by Lawpark on or before 31 October 1998. Such a notice was incapable of being complied with; Mr Parker could not reasonably have been expected to locate the relevant documents, because the notice was hopelessly imprecise as to the goods in question. The notice was therefore invalid. That element of invalidity was accepted by the Comptroller for the purposes of the proceedings and was sufficient in itself to invoke the operation of s 138 of the Evidence Act, as recognised by her Honour at [22].

91 The fact that the request for production of documents was invalid, meant that there could be no valid trigger engaging the power to execute the warrant. To that extent, the search and seizure which followed were also invalid. However, the Appellant separately asserted that there had been no failure to comply with the request, even assuming it were valid, so as to engage the power to execute the warrant, thereby constituting a separate complaint of improper or unlawful conduct.

92 In circumstances where the invalidity of the warrant depended upon failure to specify adequately the goods thought to be the subject of illegal dealing, failure to comply might not be an independent complaint if the failure were based upon the inability to identify the goods and therefore the relevant documents. In order to evaluate the separate claim, it is necessary to consider the legal principle to be applied, the identity of the officer who was responsible for making the relevant decision and the factual material upon which the decision was based.

93 With respect to the legal principle, the power to execute the warrant will arise in circumstances where a person "fails to comply with a requirement" of the Collector under sub-s 214(1): see sub-s (3). The requirement in question is to "immediately ... produce and hand over" all books and documents relating to the goods believed to have been illegally dealt with and those relating to all other goods imported or exported within the preceding five years. Failure to comply with that requirement will involve a degree of evaluative judgment: the first question to be answered is by whom the facts are to be assessed, whether the individual officer, or the Court.

94 The power to execute the warrant is conferred, not on the Collector who requires production, but on the officer of Customs or the police having the Customs warrant. In Ace Custom Services Pty Ltd v Collector of Customs (NSW) (1991) 104 ALR 463 at 471, Davies J in proceedings brought in the Federal Court to review a seizure of documents under s 214, held that the words "fails to comply" refer to "what occurred in fact, not to the Collector's, or [the officer's] view as to what occurred". His Honour referred with approval to what was said by Nagle J in Ganke v Deputy Federal Commissioner of Taxation [1975] 1 NSWLR 252 (NSWCA, Street CJ, Nagle and Begg JJ). It may be noted that Ganke was concerned with an offence constituted by a failure to furnish information required by the Commissioner in circumstances where the Commissioner had fixed a period within which the information was to be supplied. The Court held that whether or not there had been a failure depended upon whether a reasonable time had been allowed for compliance and that the reasonableness of the time was to be determined by the Court. However, Nagle J also stated that the matter could equally be approached on the basis suggested by Asprey JA in R v Skurray (1967) 86 WN(NSW) (Pt 1) 1 at 8 that "the word 'fails' itself bears the connotation of a lapse of time to enable compliance with the obligation of performance".

95 By contrast, in Holmes v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4328 at 4339, Davies J adopted the view that a requirement by the Commissioner that the applicant attend at a particular place on a particular date to give evidence on oath before identified officers could only be set aside if the time allowed was manifestly unreasonable in the Wednesbury sense adopted for the purposes of judicial review of administrative actions. In Ace Custom Services, his Honour referred to his own judgment in Holmes, but appears to have adopted a different approach, albeit also in judicial review proceedings.

96 The circumstances envisaged by s 214 of the Customs Act give rise to a somewhat different question from that which arises in relation to the issue of a notice or a warrant pursuant to a statutory procedure: c.f. Carroll v Mijovich (1991) 25 NSWLR 441. The present issue does not concern the commission of an offence, or the issue of the warrant pursuant to a statutory process, but rather the condition for execution of a warrant presumed, for this purpose, to be validly issued. This may engage the example given by Asprey JA in Skurray (p 7):

"If a person does not produce a ticket upon the request of an inspector on a railway train, that person can only be said to have failed to produce the ticket if, in the absence of a refusal to exhibit it, he did not do so after the lapse of a period of time to enable him to obtain the ticket from his person or some accompanying luggage."

97 As this example illustrates, separate questions will arise as to whether a person refusing a lawful request has committed an offence or whether the requesting officer will be entitled to execute a warrant. Where compliance with a request is a process, commencement will not necessarily prevent failure, although difficult questions of judgment may arise where there is ongoing production of documents in a dilatory and unreasonable manner. Indeed even a refusal may not involve a failure if, within a reasonable time from the first making of the request, the recipient of the request has a change of heart.

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