Interpreting s 233BAA(4)
69Subject to a particular context, words are generally interpreted consistently in a statute. In Williamson Pty Ltd v Barrowcliff [1915] VLR 450, Hodges J said:
"I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section."
As is clear from the above citation the principle of consistency in meaning has even more force where similar words are used in the same provision.
70Generally and subject to context, where a word has a particular meaning, other grammatical forms of that word have a corresponding meaning: s 18A of the Acts Interpretation Act 1901 (Cth). In Campbell, the Court distinguished the word "imports", where used as a verb, from the term "importation"; the latter, it was said, being a process. In s 233BAA(4), the past tense of the verb, namely the word "imported' is used in the same provision as the word "importation".
71The task undertaken by the Court is directed to ascertaining the "natural" meaning of the expression where used in the provision.
72In R v Lam (1990) 46 A Crim R 402, Gleeson CJ (with whom Kirby P and Newman J agreed) dealt with a charge of being knowingly concerned in the importation of a quantity of heroin. The Chief Justice cited the judgment of Barwick CJ and Windeyer J in Forbes v Traders Finance Corporation Ltd (1971) 126 CLR 429 to the effect that "importation extends on both sides of the actual act of importing... the importation does not cease at the moment of an import". Gleeson CJ said, "The term 'importation' is one that must involve at least some measure of flexibility".
73In R v Courtney-Smith (No 2) (1990) 48 A Crim R 49, the Court (Kirby P, Sharpe J and Lusher AJ) dealt with a submission that "importation" ceased when the goods were landed. The Court said:
"There are two answers to this argument: one legal and the other factual. The legal answer is that it simply is not sustained either by the language and purpose of the Act or by authority which has collected around its meaning. The relevant provisions of the Customs Act were enacted to give effect to the Single Convention on Narcotic Drugs, 1961. Its clear purpose is to strike at the illicit traffic in narcotic drugs and their penetration of the Australian society. Because Australia is an island, that penetration will normally occur through importation of such drugs. Therefore, a section addressed simply to the act of landing would not only fail to exhaust in a proper and understandable way the relevant Federal head of power. It would also fail to achieve the plain objective of preventing importation by attacking those within Australia who become concerned in the arranging the act of importation and in moving the goods, once imported, into the community where they do their mischief.
Legal authority, both of the High Court of Australia and of this Court supports that construction of the word "importation". In Forbes v Traders Finance Limited (1970) 126 CLR 429 at 432, Barwick CJ said: "'[I]mportation' extends on both sides of the actual act of importing into the country. The importation does not cease at the moment of an import. But the relevant use of a vehicle must be proximate to the act of importing. Whether it is so or not is a question of degree for decision in the particular case." That question of degree has been clarified by a succession of cases in which meaning has been given to the term. Thus in The Queen v Bull and Ors (1974) 131 CLR 203, it was held that goods on a ship still at sea, but within the three miles of the coast of the Northern Territory, had not been "imported" into Australia within the meaning of the Act until they had been landed and brought within the limits of the port with the intention of landing them. A conviction for importing prohibited goods was therefore held to be bad. The present appellant latched onto that judgment to assert that importation meant landing. But that is not the holding of Bull. That decision was addressed to a fact situation very different from that presently before the Court. There, the goods had not actually entered the country. In the instant case, the goods had undoubtedly done so. Accordingly, the holding in Bull was not determinative of the question before this Court.
Neither Commonwealth power nor the language of the Customs Act will follow the goods once they are imported, without limitation as to time and place. A time will be reached when involvement with them in their passage through the Australian community cannot properly be categorized as knowing concern in their "importation". Likewise, innocent transport of goods after their arrival, although amounting to concern in their importation in one sense, will not have the character of criminality to which the section is addressed. None of this is relevant to the facts of the present case. Nor is the narrow and technical construction of "importation" urged by the appellant compatible with a series of holdings of this and other courts about the scope and duration of the "importation" with which knowing concern must be shown. For example in R v Shin Nan Yong (1975) 7 ALR 271, this Court made it plain that it was not necessary, to secure a conviction under s233B(1)(d) that the "concern" should be made manifest in a physical sense whilst the importation was actually in progress. It was sufficient if the "concern" is manifested in the venture which centred upon the importation."
74In R v Sukkar [2005] NSWCCA 54, the Court again considered the extent of "importation" as part of a charge of being "knowingly concerned". This charge, by use of the term "knowingly concerned", broadens the conduct with which the offence is concerned: see Campbell, per Weinberg AJA.
75The Court in Sukkar (Wood CJ at CL with whom Hidden J and, relevantly, Smart AJ agreed) said:
"[118] Of some importance in relation to the asserted absence of any evidence of the Appellant's knowing involvement in the importation, was the defence submission that the columns had been unloaded, and all of the tablets removed before the Appellant arrived at the premises on the morning of 2 December. That was associated with his submission that the time of removal of the tablets, either on 24 November or on 2 December, marked the end of the process of importation.
[119] Absent any evidence showing positively that the Appellant had a financial interest in the importation, and absent any direct evidence of activity connected with the venture on his part before 24 November, I would accept the Appellant's submission that the jury ought to have had a reasonable doubt of his knowing concern in the importation prior to that date. While the evidence would give rise to a strong suspicion of his earlier involvement, that would not suffice to support a conviction on that basis.
[120] The prosecution case however does not depend upon the Appellant having been knowingly concerned in the importation before 24 November, or of having a financial interest in it. Its case was that the process of importation continued thereafter and that the conduct, on that day and subsequently, of the Appellant amounted to a knowing concern on his part.
[121] On my assessment that submission is correct having regard to the extended concept involved in the process of importation which includes recovery of the goods after landing and anything which is done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is the suppliers, shippers, customs agents, freight forwarders, and so on."
76His Honour, Smart AJ, summarised the principles that had emerged from the authorities as including:
"[157] I agree with the Chief Judge that the evidence was not sufficient to establish beyond reasonable doubt that prior to 24 November 2001 the appellant was knowingly concerned in the importation of narcotic goods consisting of not less than a commercial quantity of ecstasy tablets. The critical question is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was knowingly concerned in an importation from 24 November 2001 to 5 December 2001 or part of that period. These principles emerge from the authorities.
(a)"Importation" extends on both sides of the actual act of importing into the country The term "importation" involves some measure of flexibility. See per Barwick CJ in Forbes v Traders Finance Ltd, 126 CLR 429 at 432 and Gleeson CJ in R v Lam (1990) 46 A Crim R 402.
(b)The important question is not so much the precise meaning and application of the word "importation" as the meaning and application of the phrase "knowingly concerned in the importation". See per Gleeson CJ in R v Lam.
(c)The word "concerned" is one of general import and it is impossible to state with precision what it comprehends. Regard must be had to the facts and circumstances of the particular case. The concept of being concerned in the importation is one of some flexibility. The word "involved" is often given as a synonym for "concerned". See per Gleeson CJ in Lam.
(d)Importation means more than "landing". The prohibition against being knowingly concerned (or involved) in the importation of narcotic goods covers those within Australia who become concerned in arranging the importation and in moving the goods, once imported, into the community. See R v Courtney-Smith (No 2) (1990) 48 A Crim R 49.
(e)A time will be reached when involvement with narcotic goods in their passage through the Australian community cannot properly be categorised as knowing concern in their "importation". See R v Courtney-Smith (No 2).
(f)Innocent collection, transport or handling of goods after their arrival or providing a place for their permanent or temporary storage, although amounting to concern in their importation in one sense, will not be criminal. See R v Courtney-Smith.
(g)The concern does not have to be made manifest in a physical sense while the importation is taking place. It is sufficient if the "concern" is manifested in the venture which centred upon the importation.
(h)If imported narcotic goods are still in a container and held in a hired factory or storage facility before distribution to the intended markets they are still in the state of importation. See R v Lam.
(i)Importation is a venture or process not a physical act which occurs or ceases at the moment of import. Intervention by the authorities, for example, seizing the goods, does not prevent that process or venture from continuing and a person might subsequently become concerned in the importation. See R v Leff (1996) 86 A Crim R 212 per James J and per Gleeson CJ.
(j)Concern in an importation can commence at a time when it has apparently broken down and where efforts are being made to bring it to fruition. See per Gleeson CJ in Leff.
(k)Where narcotic goods are imported into Australia in the voids of pieces of machinery or equipment the act of importation embraces the removal of those narcotic goods from such pieces of machinery and equipment and attempts to do so."
77In Sukkar, the Court relied, inter alia, on the judgment of the Court in R v Leff (1996) 132 FLR 102; (1996) 86 A Crim R 212. In the course of agreeing with James J, Gleeson CJ (Allen J agreeing with both Gleeson CJ and James J) said (at 2):
"Raz was merely a courier. The venture of importation to which he lent himself involved the consignment of cocaine from principals in the United States to Kissner in Sydney. Raz, with the cocaine strapped to his body, was to be met by Kissner at Sydney airport and taken to a place where he would hand the cocaine over to Kissner. From the point of view of the importer, Kissner, the importation would end when he received the cocaine from Raz.
Because of the interception by the authorities, before Raz cleared customs, he did not make contact with Kissner at the airport.
Later on 21 July, when, on her story, the appellant became involved, Raz telephoned her to say he had not been met at the airport. (Why Raz would have telephoned her, and spoken to her in the manner recorded by the surveillance, if she had not previously been involved is hard to imagine).
At that stage the venture of importation was incomplete. It had been interrupted by the authorities. Raz had not been able to make contact with Kissner, and the authorities had taken the cocaine, which he was to deliver to Kissner, from him.
The principal argument for the appellant comes down to the proposition that at that stage it was impossible for her to become knowingly concerned in the importation; the importation was over. I am unable to accept that argument. The concepts of importation, and of being concerned in an importation, are both sufficiently flexible to cover a case such as the present. As the authorities referred to by James J show, importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import. Furthermore, concern in an importation can commence at a time when it has apparently broken down, and where efforts are being made to bring it to fruition."
78In the same case James J said:
"It is true that in the present case Raz was arrested at the airport and the cocaine being carried by him was seized by the Federal Police. However, I do not consider that the intervention by the authorities prevented the process or venture of importation from continuing so that a person might subsequently become concerned in the importation. In R v Chow (1987) 11 NSWLR 561 this Court held that the appellant had been rightly convicted of being in possession of prohibited imports being heroin, in a case where before the appellant had a meeting with the courier who had brought the heroin into Australia in a suitcase, police had entered the motel room where the courier was staying, taken possession of most of the heroin and substituted plaster of Paris blocks in the suitcase.
In the present case, there was evidence that after some of the telephone conversations with the appellant had taken place, Kissner was still taking steps with a view to obtaining delivery of the cocaine."
79Again the offence considered in the judgment in Leff was being "knowingly concerned" in the importation, rather than "importing". It is therefore necessary to re-examine the judgment in Calderwood.
80In Calderwood the appellant was unrepresented. The charge considered by the Court was, as has been stated, a charge under s 233B of the Customs Act, which provision has since been repealed. The offence was committed, relevantly, "if... the person... imports"[sic] narcotics.
81The word "imports" in what was then s 233B of the Customs Act was used as a verb, not as a noun; nor did the legislature utilise a participle or gerundive in this provision. The word must be understood within the context of the Customs Act, where it seems to imply a process, rather than a single act: starting with the goods' journey from outside Australia and concluding with the goods' landing in Australia (or even clearance at customs).
82In Campbell, the reasons for judgment in Calderwood were, as has been said, distinguished on the basis that the charge in Campbell arose under the Criminal Code, not the Customs Act. The offence under the Criminal Code was in wording, as distinct from context, relevantly identical to that in Calderwood in that it prescribed that a person committed an offence "if the person imports [sic]... a substance".
83In Campbell, the Court was not dealing with a charge of being "knowingly concerned". The Court took the view that the substance had been imported and the physical conduct giving rise to the offence was completed before the container was unpacked. As the Crown case in Campbell permitted a conviction based on the formation of an intention after the physical conduct had ended, and, as it was necessary for both physical and mental elements to exist at the one time, the conviction could not stand. A new trial was ordered.
84The Court in Campbell, distinguished Calderwood, Sukkar, Bull, and Wilson v Chambers (1926) 38 CLR 131, amongst other cases, on the basis that the issue they dealt with was the extent of "importation" rather than "imports" or, as in the cases of Calderwood and Bull, on the basis that, even though the word "imports" was used, it was in the context of the Customs Act, the statutory scheme of which required the term to be given the same flexibility as the term "importation": see particularly Campbell at [52] - [60].
85The Court of Criminal Appeal in South Australia considered the above issues in Toe v R (2010) 106 SASR 203; [2010] SASC 39, which judgment was issued on 26 February 2010. In the Toe proceeding, the impugned conduct of the accused occurred in May 2007 and the trial concluded with guilty verdicts in May 2009. The SA Court (Bleby and White JJ with Gray J dissenting) preferred the analysis in Campbell and disapproved of the approach in Calderwood.
86The offences subject to charge in Toe were identical to those in Campbell and arose under the Code. At [46] of Toe, Bleby J noted that it was significant that the Court in Calderwood relied on a line of authority in which no judgment dealt with an offence involving "import into Australia", but rather dealt with being "knowingly concerned in importation". That comment, with great respect to Bleby J, ignores the judgment of the High Court in Bull, relied on by the Court in Calderwood and distinguished by this Court in Campbell.
87In Bull, the High Court decided that, in circumstances where the drugs were "dumped" at sea to prevent detection, there had been no person who had imported the drugs because importing required landing on the unsubmerged land mass of Australia. On one view, to which I do not subscribe, the discussion on the meaning of "imports" in Bull is obiter dicta, at least in part. Nevertheless, it is considered in detail by the High Court and, at least in the context of an offence under the Customs Act, it is, and should be, binding on this Court: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89.
88I note that, following the publication of the judgment in Campbell, and just prior to the publication of the judgment in Toe, the Criminal Code was amended, effective 20 February 2010, to include, in the definition of "import", "deal[ing] with the substance in connection with its importation". Whatever were the limits applicable to the use of the word "imports", as distinct from "importation", at the time of the alleged offences in Campbell and Toe, those limitations did not apply as at April 2010, when the alleged conduct in this charge was said to occur, even if the principal offence were an offence under s 307.11 of the Code.
89As a consequence of the foregoing analysis, binding authority is to the effect that the term "imports", where used in the Customs Act, includes conduct beyond the landing of the goods and, in the words of Wood CJ at CL in Sukkar, supra at [121], "includes recovery of the goods after landing and anything ... done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is suppliers, shippers, customs agents, freight forwarders, and so on".
90It would seem, following the amendment to definitions of "import" in the Code, that an offence involving "importing", even under the Code, would have the same degree of flexibility. It is unnecessary to decide that issue in these proceedings.
91It is sufficient to find that the natural meaning of "imported" in the Customs Act includes the owner or importer taking delivery of the goods. Whether it would include another person, not otherwise involved in the importation, taking delivery will depend upon a range of factors. The term is a flexible one, but not infinitely variable.
92As a consequence of my view of the law and of the proper construction of "imported" in s 233BAA of the Customs Act, Mr Simpson was, subject to the issue of the substitution of flour for the substance, still engaging in the conduct that was part of the process by which the substance was "imported" and thus he was engaged in committing the offence.
93Once that proposition is accepted, the substitution of flour for the substance has no effect on the criminality of the conduct in which Mr Simpson was engaged when he took delivery of the furniture in which the substance was originally secreted. It is sufficient to refer to the passage from the judgment of Gleeson CJ, recited above, in Leff, in which the Court was dealing with precisely those circumstances.
94"The concept of importation" is "sufficiently flexible to cover a case such as the present". While the Court, in this case, is not dealing with "knowing concern" which, according to Gleeson CJ, may commence after the importation has apparently broken down, the Court, in examining the principal offence, is dealing with a principal offender who, in fact, imported the substance into Australia and was still acting to effect (i.e. take delivery of) that importation.