The Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2000] QSC 171

Judgment (365 paragraphs)

[1]

CUSTOMS AND EXCISE - determination of preliminary questions - whether customs & excise prosecutions by the CEO of Customs are civil or criminal proceedings - whether the civil or criminal standard of proof applies.

[2]

Crimes Act 1914, s 5, s 15A(1), s 21B

[3]

Customs Act 1901, s 33, s 234, s 236, s 245, s 247

[4]

Evidence Act1995 (Cth) s 3, s 4, s 140, s 141

[5]

Excise Act 1901, s 61, s 120

[6]

Penalties and Sentences Act 1992 (Qld), s 182A, s 185

[7]

Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147, considered.

[8]

Attorney-General v Bradlaugh (1885) 14 QBD 667, considered.

[9]

Attorney-General v Freer (1822) 11 Price 183, at 197; 147 ER 441 at 446, considered.

[10]

Attorney-General v Radloff [1854] EngR 636; (1854) 10 Ex 84; 156 ER 366, considered.

[11]

Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, considered.

[12]

Bainbridge-Hawker v The Minister of State for Trade and Customs [1958] HCA 60; (1958) 99 CLR 521, considered.

[13]

Benham v The United Kingdom [1996] ECHR 22; (1996) 22 EHRR 293, considered.

[14]

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, considered.

[15]

Chinchen v Weiss (1964) 80 WN (NSW) 1676, considered.

[16]

Commissioner for Motor Transport v Train [1972] HCA 62; (1972) 127 CLR 396, considered.

[17]

Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 130 FLR 383, considered.

[18]

Comptroller-General of Customs v Kingswood Distillery Pty Limited NSWSC, No 12134 of 1992, 11 February 1997, considered.

[19]

Comptroller-General of Customs v Jayakody Vic SC No 4657 of 1992, 9 November 1993, considered.

[20]

Evans v Button (1988) 13 NSWLR 57, considered.

[21]

Ex parte Duffy; Re Automobile Advance Agency Co Ltd [1958] SR (NSW) 343, considered.

[22]

Gapes v Commercial Bank of Australia Ltd [1979] FCA 62; (1979) 38 FLR 431, considered.

[23]

Hayes v Bondaletoff [1986] 1 QdR 455, considered.

[24]

Henty v Bainbridge-Hawker (1963) 36 ALJR 354, considered.

[25]

Hinch v Attorney-General (Vict) [1987] HCA 56; (1987) 164 CLR 15, considered.

[26]

Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce (1988) 94 FLR 278, considered.

[27]

Jackson v Butterworth [1946] VicLawRp 51; [1946] VLR 330, considered.

[28]

Jackson v Gromann [1948] VicLawRp 71; [1948] VLR 408, considered.

[29]

Kelly v Wong NSWSC No 12178 of 1989, 29 April 1998, considered.

[30]

Kingswell v The Queen (1985) 159 CLR 264, considered.

[31]

Mallan v Lee [1949] HCA 48; (1949) 80 CLR 198, considered.

[32]

McGovern v Hillman Tobacco Pty Ltd (1949) 4 AITR 272, considered.

[33]

Minister for Business and Consumer Affairs v Evans (1984) 54 ALR 128, considered.

[34]

Moore v Jack Brabham Holdings Pty Ltd (1986) 7 NSWLR 470, considered.

[35]

Murphy v KRM Holdings P/L [1985] FCA 495; (1985) 8 FCR 349, considered.

[36]

Naismith v McGovern [1953] HCA 59; (1953) 90 CLR 336, considered.

[37]

Preston v Chief Executive Officer of Customs [2000] QCA 186; CA No 1260 of 2000, 22 May 2000, considered.

[38]

R v Justices of the Appeals Committee of the County of London Quarter Sessions [1946] 1 KB 176, considered.

[39]

Seaman v Burley [1896] 2 QB 344, considered.

[40]

The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153, considered.

[41]

The King (Sherry) v The County Court Judge and Chairman of Quarter Sessions for County Fermanagh [1935] NI 211, considered.

[42]

The King and the Federal Commissioner of Taxation v McStay (1945) 7 ATD 527, considered.

[43]

The King v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, considered.

[44]

The State (Gettins) v Judge Fawsitt [1945] IR 183, considered.

[45]

Witham v Holloway (1995) 183 CLR 525, considered.

[46]

Wong v Kelly [1999] NSWCA 439, considered.

[47]

[1] This matter concerns a prosecution by the Chief Executive Officer of Customs of a company, Labrador Liquor Wholesale Pty Ltd and two individuals, Lawrence Eric Wright and Jeffrey Andrew John Bryce, for breaches of ss 61 and 120(1)(iv) of the Excise Act 1901 and ss 33, 234(1)(a) and 234(1)(d) of the Customs Act 1901. The prosecution is in regard to exports of alcohol and cigarettes from Australia to the Solomon Islands and Fiji during 1996. The plaintiff alleges that the defendants failed to pay certain customs and excise duties on those goods.

[48]

[2] In the amended Statement of Claim which has been filed, the plaintiff claims:

[49]

"(1) Declarations that each of the defendants is liable to conviction for offences contrary to Sections 61 and 120(1)(iv) of the Excise Act 1901 ("the Excise Act").

[50]

(2) Declarations that each of the defendants is liable to conviction for offences contrary to Sections 33, 234(1)(a) and 234(1)(d) of the Customs Act 1901 ("the Customs Act").

[51]

(3) The conviction of the first, second and third defendants for offences contrary to Sections 61 and 120(1)(iv) of the Excise Act.

[52]

(4) The conviction of the first, second and third defendants for offences contrary to Sections 33, 234(1)(a) and 234(1)(d) of the Customs Act.

[53]

(5) An order for recovery of penalties against the defendants pursuant to the Excise Act and the Customs Act.

[54]

(6) An order pursuant to Section 21B of the Crimes Act 1914 that the first, second and third defendants make reparation to the Commonwealth of Australia.

[55]

(8) Such other or further orders directions or relief as the Court shall deem fit."

[56]

[3] The parties, by consent, asked the Court to determine the following preliminary questions:

[57]

(a) What is the standard of proof required of the plaintiff in these customs prosecutions in order for him to obtain convictions for offences against s 33, s 234(1)(a) and s 234(1)(d) of the Customs Act?

[58]

(b) What is the standard of proof required of the plaintiff in these excise prosecutions in order for him to obtain convictions for offences against s 61 and s 120(1)(iv) of the Excise Act?

[59]

[60]

(d) Are these excise prosecutions criminal proceedings for the purposes of the Evidence Act 1977?

[61]

[4] The terms "customs prosecution" and "excise prosecution" are terms which are defined in the respective Acts. Section 244 of the Customs Act defines a customs prosecution as "proceedings by the Customs for the recovery of penalties other than a pecuniary penalty referred to in section 243B under this Act or for the condemnation of ships, aircraft or goods seized as forfeited". An excise prosecution is defined by s 133 of the Excise Act as "proceedings by the Customs for the recovery of penalties under any Excise Act".

[62]

[5] The relevant offences are found in s 33 and s 234(1)(a) and (d) of the Customs Act 1901. Section 33 provides, inter alia:

[63]

"(1) Except as authorised by this Act, a person shall not move, alter or interfere with goods that are subject to the control of the Customs.

[64]

(2) If a person who commits an offence against subsection (1) does the act that constitutes the offence:

[65]

(a) on behalf of another person of whom he is an employee; or

[66]

(b) at the direction or with the consent or agreement (whether express or implied) of another person;

[67]

that other person commits an offence and is punishable, on conviction, by a fine not exceeding $50,000."

[68]

[6] A person is prohibited under s 234(1)(a) from evading payment of any duty which is payable, and under s 234(1)(d) from knowingly or recklessly making a statement to an officer that is false or misleading in a material particular or omitting from a statement made to an officer any matter or thing without which the statement is misleading in a material particular.

[69]

[7] Section 234(2) provides, inter alia, that:

[70]

"A person who contravenes subsection (1) is guilty of an offence punishable upon conviction:

[71]

(a) in the case of an offence against paragraph (1)(a), by:

[72]

(i) where the Court can determine the amount of the duty on goods the payment on which would have been evaded by the commission of the offence if the goods had been entered for home consumption on:

[73]

(A) where the date on which the offence was committed is known to the Court--that date; or

[74]

(B) where the date is not known to the Court--the date on which prosecution for the offence was instituted;

[75]

a penalty not exceeding 5 times the amount of that duty and not less than 2 times that amount; or

[76]

(ii) where the Court cannot determine the amount of that duty, a penalty not exceeding $50,000;

[77]

(c) subject to subsections (3) and (4), in the case of an offence against paragraph (1)(d), by a penalty not exceeding $5,000".

[78]

[8] Subsections 234(3) and (4) provide:

[79]

"(3) Where a person is convicted of an offence against paragraph (1)(d) in relation to a statement made, or an omission from a statement made, in respect of the amount of duty payable on particular goods, a Court may, in relation to that offence, impose a penalty not exceeding the sum of $5,000 and twice the amount of the duty payable on those goods.

[80]

(4) If a person is convicted of an offence against paragraph (1)(d) in relation to a statement made, or an omission from a statement made, in respect of an amount of diesel fuel rebate applied for under section 164, a court may, in relation to that offence, impose a penalty not exceeding the sum of $5,000 and twice the amount by which the rebate applied for exceeds the rebate to which the person would have been entitled had the person not made the false or misleading statement, or the omission, to which the offence relates."

[81]

[9] The relevant sections of the Excise Act 1901 are s 61 and s 120(1)(iv). Section 61 provides:

[82]

"All excisable goods are, until delivered for home consumption or for exportation to a place outside Australia, whichever first occurs, subject to the control of Customs and must not be moved, altered or interfered with except as authorised by this Act.

[83]

[10] Section 120(1)(iv) provides that a person shall not evade payment on any duty which is payable. Section 120(2) provides that a person who contravenes subsection (1) is guilty of an offence punishable upon conviction:

[84]

"(b) in the case of an offence against paragraph (1)(iv), by:

[85]

(i) where the Court can determine the amount of the duty on goods the payment of which would have been evaded by the commission of the offence if the goods had been entered for home consumption on:

[86]

(A) where the date on which the offence was committed - that date; or

[87]

(B) where the date is not known to the Court - the date on which the prosecution for the offence was instituted;

[88]

a fine not exceeding 5 times the amount of that duty and not less than 2 times that amount; or

[89]

(ii) where the Court cannot determine the amount of that duty, a fine not exceeding $50,000".

[90]

[11] Although the proceedings for breaches of these sections are described as prosecutions[1], the civil procedure of the Court is used. Section 247 of the Customs Act[2] provides:

[91]

"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."

[92]

[12] As there are no rules of practice established for Crown suits in revenue matters, the action has proceeded in accordance with the usual practice and procedure of the Court in civil matters, and as directed by a Judge.[3] This Court has previously held in Hayes v Bondaletoff [4] that the proceeding is civil in character, and not criminal, and that the plaintiff bore the onus of proof to the civil standard of the balance of probabilities. This was, it should perhaps be noted, the submission of all the parties in that case so was not the subject of argument. The Court held, however, that the submission was correct.

[93]

[13] The plaintiff argues that the civil procedure followed in these matters determines whether or not they are civil or criminal in nature and therefore the standard of proof that applies. This is supported, it is argued, by authority and the history of customs prosecutions.

[94]

[14] The defendants submit that these proceedings are essentially criminal in nature in that by these proceedings a Court has to determine whether the defendants should be convicted of offences. That being so, as a matter of substantial law, the standard of proof necessary to establish their guilt is proof beyond reasonable doubt, unless there is by statute a lesser standard imposed either expressly or by necessary implication. There is no such imposition under the Customs Act or the Excise Act. Further the defendants submit that each of these prosecutions is a criminal proceeding within the meaning given to that term by s 5 of the Evidence Act 1977 (Qld).

[95]

[15] The genesis of s 247 of the Customs Act is found in the practice in England as at 1901. The Court of Exchequer had been established to deal with Crown suits in revenue matters.[5] The Court of Exchequer was abolished by the Supreme Court of Judicature Act 1873. The revenue jurisdiction of the Court of Exchequer was transferred to the Exchequer Division of the High Court[6] and then in 1881 to the Queen's Bench Division of the High Court.[7]

[96]

[16] There was division in the Court of Exchequer as to whether or not an information filed by the Attorney-General against a defendant for a breach of the customs law was a criminal proceeding.[8] Blackstone regarded the laying of such an information as a mode of prosecution of an offence without indictment.[9] Such proceedings were carried on by "criminal instead of civil process". In The Attorney-General v Freer[10] Graham B upheld a submission by the Attorney-General that penal informations filed in the Court of Exchequer, in that case proceedings for penalties for mixing strong beer with table beer contrary to statute, although partly of a criminal nature, for many purposes were to be considered as in the nature of civil actions.

[97]

[17] In Attorney-General v Radloff [11], Pollock CB and Parke B held that an information for a breach of the customs law was a criminal proceeding while Platt B and Martin B held that it was not. Attorney-General v Radloff concerned the question of whether or not the defendant was competent to give evidence on the trial of an information filed by the Attorney-General for the recovery of penalties for smuggling. At that time a defendant in a criminal trial was not able to give evidence in his or her own defence.[12] Pollock CB posed the questions to be answered as:

[98]

* Is the proceeding in this Court by the Attorney-General to recover penalties upon an information a criminal proceeding?

[99]

* Is it an offence punishable on summary conviction?

[100]

[18] If smuggling were an offence punishable on summary conviction and if an information by the Attorney-General were a criminal proceeding, then in the Chief Baron's opinion, the defendant would not be able to give evidence. Pollock CB answered all of these questions in the affirmative.[13] His Lordship thought that cheating the state was morally and legally indistinguishable from cheating a private individual and that therefore it was a criminal offence. It was a matter which might be inquired into and punished on summary conviction. It was a criminal proceeding because the proclamation at the beginning of the trial was the same as the proclamation given at the beginning of criminal trials.

[101]

[19] Parke B[14] also held that an information by the Attorney-General for an offence against the revenue laws was a criminal proceeding. It was a proceeding instituted by the Crown for the punishment of a crime, as it was a crime and an injury to the public to disobey statute revenue law.

[102]

[20] Martin B,[15] however, thought that the act of bringing tobacco into the country which was a "perfectly innocent act" could not be rendered a crime by the failure of the importer to pay duty. The failure to pay gave rise to an action in debt, which was clearly not a criminal proceeding, or to the laying of an information by the Attorney-General. His Honour was of the view that "the defendant's right cannot be affected by the form of proceeding which the Attorney-General thinks proper to use."

[103]

[21] Platt B[16] was also of the view that the proceeding was not a criminal proceeding. It was merely an action for the purpose of recovering penalties. His analysis of the distinction between civil and criminal proceedings was as follows:[17]

[104]

"It seems to me that the true test is this, if the subject matter be of a personal character, that is, if either money or goods are sought to be recovered by means of the proceeding - that is a civil proceeding; but, if the proceeding is one which may affect the defendant at once, by the imprisonment of his body, in the event of a verdict of guilty, so that he is liable as a public offender - that I consider a criminal proceeding."

[105]

[22] In a number of subsequent decisions,[18] the Court of Appeal held that it had no jurisdiction to hear an appeal from a decision of the Queen's Bench Division with regard to orders made by justices as to informations laid which were punishable by penalties as they were criminal proceedings.

[106]

[23] The division of judicial opinion, demonstrated in Attorney-General v Radloff which has been reflected in many subsequent decisions of courts, was apparently resolved in Attorney-General v Bradlaugh,[19] a decision of the Court of Appeal, where Brett M R observed:[20]

[107]

"Now comes the question whether an information by the Attorney General on the revenue side of the Court of Exchequer is or is not a criminal proceeding in any sense. In order to answer this question, we must consider Attorney General v. Radloff. It is not binding on this Court; it is a case in the Court of Exchequer, and we are bound to exercise our own judgments upon it. It is a case in which the judges were equally divided in opinion, and, therefore, it could not bind any Court, but certainly could not bind this Court. Two of the judges were of the opinion that unless there was something very peculiar in the Act of Parliament, such as that it in terms enacted that it was to be a criminal matter, the proceeding on the revenue side of the Court of the Exchequer for the recovery of a penalty in the name of the Attorney General was not a criminal proceeding. The other two were of opinion that it was. I will not go into the reasons; the reasons were given by the eminent judges on both sides, but, to my mind, if I had been a member of the Court at that time, I should have seen no answer to the reasoning of Martin, B, in that case, and I should have been of opinion in that case that an information for a penalty in the Revenue side of the Court of Exchequer could not at any time, unless there were special and clear words in an Act of Parliament saying it was so, be considered as a criminal proceeding."

[108]

[24] The view that these matters were criminal proceedings, expressed by two of the judges in Attorney-General v Radloff, led to the Crown Suits Act 1865[21] which provided that the revenue side of the Court of Exchequer should be deemed to be a court of civil judicature. Brett M R held[22] that the legislative provision seemed to have decided the controversy in favour of those judges who considered that a suit or information for penalties on the revenue side of the Court of Exchequer or its replacement was not a criminal proceeding. His Lordship drew a distinction between actions for the recovery of a penalty and criminal matters as follows:[23]

[109]

"The recovery of a penalty, if that is the only consequence, does not make the prohibited act a crime. If it did, it seems to me that that distinction which has been well known and established in law for many years between a penal statute and a criminal enactment, would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment."

[110]

[25] Cotton LJ[24] thought that the question of whether or not the appeal before them was in a criminal cause was a matter about which he had considerable doubt, but which it was not necessary to decide. Lindley LJ also thought that the question of whether or not the proceedings were criminal or civil was not free from doubt when he observed:[25]

[111]

"Now the next point was that no appeal would lie, because this was a criminal cause within the true construction of s. 47 of the Judicature Act, 1873. Up to a certain point it did appear to me that the argument of the Attorney General had considerable weight; but we are not considering the abstract question whether this is a criminal matter or a civil matter. We are considering whether there is an appeal, and there are matters which are on the boundary line which divides civil from criminal matters, and this is one of them. But this difficulty is removed by the provisions of the Crown Suits Act, 1865. Let this proceeding be called criminal, still it is a criminal one in which an appeal is given by that statute; and when we look through the Judicature Acts and the various sections relating to appeals, not the slightest indication is to be found anywhere in the Judicature Acts of any intention on the part of the legislature to deprive suitors of appeals, in cases which were previously made civil proceedings for the purposes of appeal: such cases at all events do not fall within the language of s. 47. But for the provisions of the Crown Suits Act, 1865, I should have had more doubt than I have: but having regard to those sections, and principally 31, 34, and 35, it appears to me that an appeal does lie."

[112]

[26] Thereafter the Court of Criminal Appeal rejected as incompetent an appeal from a conviction for smuggling.[26] The Court held that an information by the Attorney-General on the revenue side of the King's Bench Division was a civil and not a criminal proceeding,[27] and consequently the appeal lay to the Court of Appeal and not the Court of Criminal Appeal.

[113]

[27] In Seaman v Burley,[28] Lord Esher MR held that it was the nature of the proceeding rather than the act complained of which determined whether a matter was a civil or criminal cause or matter.[29] An assault, for example, may give rise to a civil action or a criminal cause or matter. His Lordship held that if a procedure might end in imprisonment then it was a criminal matter.[30] In this case, proceedings to compel the appellant to pay a poor-rate, in which the justices were asked to issue a distress warrant against him and if there were no sufficient distress the next step would be to ask the justices to commit him to prison for six months or until he paid the rate, were held to be criminal proceedings.

[114]

[28] A prosecution for an income tax offence for recovering a penalty by way of information for debt has been held by the Supreme Court of Ireland to be in the nature of a civil proceeding rather than a criminal proceeding.[31] However in The State (Gettins) v Judge Fawsitt,[32] a majority held that proceedings for a penalty for breach of a wartime provision prohibiting the export of iron and steel as if it were an offence against the Customs Act was criminal rather than civil in nature because the object of the legislation was not the recovery of money by the State. The object was to punish offenders who had contravened Emergency Powers Orders passed to secure the benefit of the public.[33] One of the dissentients, Black J said[34] he doubted whether the application of logical principle was a sure guide in dealing with the traditional doctrine that proceedings in respect of revenue offences were in their nature civil. His Honour said he regarded that tradition as itself wholly illogical but, none the less, well recognised.

[115]

[29] In Northern Ireland, the Court of Appeal considered a conviction on an information or summons for the payment of treble the duty under the Customs Act on cattle imported from the Irish Free State into Northern Ireland. Andrews LJ held that an action for penalties is a civil proceeding on the revenue side of the Court of Exchequer and that such proceedings, when instituted in the High Court by information at the suit of the Attorney-General for the recovery of penalties, were civil, not criminal in character.[35] Liability for imprisonment for non-payment of a penalty was not considered sufficient to make it a criminal proceeding. Megaw J held[36] that:

[116]

"The imprisonment that may follow from a conviction is only a method of enforcing the payment of the statutory penalty, and can only be inflicted till the amount of the statutory penalty is paid."

[117]

However his Honour did say that he arrived at the conclusion, that the instant case must not be regarded as a criminal cause or matter, "with considerable doubt".[37]

[118]

[30] While an action for a penalty was a civil action and not a criminal cause, the courts would not however make an order in favour of the plaintiff for discovery or for the administration of interrogatories as there is a rule of law which prevents the application of any of the procedures with regard to discovery in an action but is rather for a penalty brought by a common informer.[38] This is not a rule against self-incrimination as in an action for a penalty there can be no question of the defendant's being called upon to incriminate himself or herself; but an example of the rule that the Courts will not assist a common informer suing for a penalty by their procedure in any way. This decision was however made at a time when there was no right to discovery but rather the Court had the discretion to order it.

[119]

[31] In Australia, this question was considered by Isaacs J in the High Court in The King v Associated Northern Collieries,[39] when his Honour heard a summons for directions in a proceeding for the recovery of pecuniary penalties under the Australian Industries Preservation Act 1906. The statute provided that proceedings for the recovery of pecuniary penalties for the offences alleged were to be instituted by way of civil action. His Honour held that an action was none the less civil even though it was penal.[40] He referred to the judgment of Lord Mansfield in Atcheson v Everitt:[41] "Penal actions were never yet put under the head of criminal law, or crimes". In an action of debt by way of penalty for bribery, his Lordship said that it was as much a civil action as an action for moneys had and received.

[120]

[32] The question was then posed as to whether a plaintiff in a civil action for penalties was entitled to an order for discovery of documents. Isaacs J saw no difference in principle between an information laid by a common informer and one laid by the Attorney-General. His Honour held that in a civil action for penalties, in the absence of statutory provision to the contrary, the plaintiff was not entitled to an order for discovery of documents against the defendant. In such a case the whole object of the proceedings was the infliction of the penalty, and the discovery sought of documents relevant to the claim could therefore have no other intended consequence.

[121]

[33] A more expansive view of whether a matter was a criminal cause or matter found support in the House of Lords in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government[42] where Lord Wright held:

[122]

"The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a `criminal cause or matter'".

[123]

[34] The Court of Appeal in R v Justices of the Appeals Committee of the County of London Quarter Sessions[43] recognised that the situation for excise and customs prosecutions was anomalous. On the one hand, they gave rise to potential punishment which suggested that they were criminal causes and yet on the other hand, they were subject to statutory provisions applying the rules of civil procedure which suggested that they were civil proceedings. The Court considered that "the form of the proceeding is the test".[44] That seemed to be the answer to the anomaly which arose because the statute applied the rules of civil procedure in a proceeding which was in its origin criminal.

[124]

[35] It now seems to be the case in the United Kingdom that even if a matter is labelled "civil" in the domestic law, the European Court of Human Rights will examine its substance to determine whether it is a criminal or a civil matter.[45] Accordingly proceedings are likely to be held to be criminal if they are brought by a public authority and have either culpability requirements or potentially severe consequences, such as imprisonment.

[125]

[36] This division of opinion has been reflected in the courts in Australia. It must be said however that the majority have followed the views expressed by Brett MR in Attorney-General v Bradlaugh. The earliest cases to consider the point in Australia involved taxation prosecutions under the Income Tax Assessment Act 1936. The matter was first considered in the High Court by Williams J, sitting alone, in The King and the Federal Commissioner of Taxation v McStay[46] where his Honour said:[47]

[126]

". . . proceedings under Part VII of the [Income Tax Assessment] Act are not strictly criminal proceedings. The defendant is not sent to gaol as a direct punishment for having committed the offence . . . The direct punishment for the offence is the penalty which is imposed and the defendant is sent to gaol chiefly as a means of enforcing payment of the penalty."

[127]

[37] The next case to consider whether such a prosecution was a civil proceeding or a criminal proceeding was Jackson v Butterworth[48] where Fullagar J, then a judge of the Supreme Court of Victoria, held:[49]

[128]

"If it were a criminal proceeding, the standard of proof which is required in criminal cases would be required here, and it would be necessary for the Court to be satisfied beyond reasonable doubt of the guilt of the defendant. In the view which I have ultimately taken of this case, this question does not appear to be important, but I may say that, in my opinion, the proceeding is civil and not criminal in character. The procedure is by action to recover a penalty, and the rules of civil procedure apply. It is true that in section 230 the word `offence' is used and in other sections the word `conviction' is used. But this is not conclusive. See A.-G. v_. Bradlaugh_. And I think that a proceeding under Part VII. is analogous to a proceeding by information on the Revenue side of the Court of Exchequer under sec. 42 or sec. 86 of 8 and 9 Vict. c. 87, as to which see A.-G. v. Radloff and the reference to this case in A.-G. v_. Bradlaugh_. See also Lord Advocate v. Thomson. This, of course, does not affect the position that, when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. An intention to defraud the revenue is a serious matter, the possible penalty is heavy, and `the seriousness of an allegation made . . . or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal' (per Dixon J. in Briginshaw v. Briginshaw). Dixon J. added `In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences'".

[129]

[38] Three years later Fullagar J revisited this question in Jackson v Gromann[50] when again considering a taxation prosecution under Part VII of the Income Tax Assessment Act 1936. The enforcement provision[51] of that Act provided for, upon conviction for an offence, imprisonment until the penalty was paid, release upon giving security for payment or the exercise of any power of distress or execution possessed by the Court. His Honour observed:[52]

[130]

"In Jackson v Butterworth [1946] VicLawRp 51; [1946] VLR 330, I expressed the opinion that proceedings under Part VII were civil rather than criminal in nature, and to that opinion I adhere, although I did not and do not regard the authorities which I cited as conclusive on the point."

[131]

Later in the judgment[53] his Honour referred to the proceedings, while civil and not criminal for all purposes for which it may be necessary to draw the distinction, as "quasi-criminal" as there was "a `conviction' for an `offence', and a `penalty' [was] exacted."

[132]

[39] The relevant section of the Income Tax Assessment Act, s 230, was next considered by the High Court in Mallan v Lee.[54] Section 230 provides:

[133]

"(1) Any person who, or any company on whose behalf the public officer, or a director, servant or agent of the company, in any return knowingly and wilfully understates the amount of any income or makes any misstatement affecting the liability of any person to tax or the amount of tax shall be guilty of an offence. Penalty: Not less than Twenty-five pounds, or more than Five hundred pounds and, in addition, the court may order the person to pay to the Commissioner a sum not exceeding double the amount of tax that would have been avoided if the statement in the return had been accepted as correct.

[134]

(2) A prosecution for an offence against this section may be commenced at any time within six years after the commission of the offence."

[135]

[40] A company, Telephone Rentals Ltd, was charged with a contravention of s 230 and its public officer, Mr Mallan, was also charged with the same offence pursuant to s 5 of the Crimes Act 1914 which provides:

[136]

"Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly."

[137]

It was contended that s 5 of the Crimes Act had no application because s 230 of the Income Tax Assessment Act provided only for civil proceedings and did not create an offence.

[138]

[41] Latham CJ analysed s 230 and concluded that the provision for the payment of a penalty was a provision for the payment of a fine. His Honour held that:[55]

[139]

". . . s 230 quite plainly and unambiguously provides that a person who does certain things shall be guilty of an offence and may be fined therefore and, in addition, may be ordered to pay a further sum by way of penalty. Proceedings under the section are not proceedings for the recovery of a debt."

[140]

[42] His Honour held that it was unnecessary to determine whether the description "criminal" applied to proceedings under s 230 of the Income Tax Assessment Act since s 5 of the Crimes Act applied to all offences. He agreed[56] with Dixon J that in fact in this case it was not necessary for the prosecution to proceed under s 5 because the terms of s 230 were wide enough to cover the offence alleged to have been committed by the company's public officer. However his Honour did refer to two of the arguments usually put forward as to whether or not proceedings of this type are criminal proceedings. The first is that the word "criminal" is sometimes said to be properly applied against what are called public laws. Latham CJ, in my view, correctly observed that "taxation laws were public laws in every sense, though English cases exhibit a marked reluctance to regard a smuggler or other person who defrauds the Government in matters of revenue as a criminal."[57] Secondly, his Honour noted that sometimes the possibility of imprisonment upon conviction is taken as the test. "Imposition of a pecuniary penalty as a fine, as distinguished from recovery of a penalty as compensation, equally clearly shows that the Legislature intended to punish an act as being criminal."

[141]

[43] As with customs and excise prosecutions, s 237 of the Income Tax Assessment Act provides that taxation prosecutions may be commenced, prosecuted and proceeded with in accordance with:

[142]

(1) any rules of practice established by the Court for Crown suits in revenue matters;

[143]

(2) in accordance with the usual practice and procedure of the Court in civil cases; or

[144]

(3) in accordance with the directions of the Court or a Judge.

[145]

[44] The proceedings could therefore assume different forms. Latham CJ held[58] that they may assume a civil form or a criminal form. His Honour said:

[146]

"If proceedings are instituted in a court of summary jurisdiction (as in the present case) there is nothing to distinguish the proceedings from any other proceedings for an offence. If proceedings were instituted in the Supreme Court or the High Court they might assume a civil form or, in accordance with the directions of the Judge, a form more nearly approaching to that of criminal proceedings. The case of R. v. Justices of Appeals Committee where the Court followed Seaman v. Burley and declined to follow Sherry's Case supports the conclusion that in this case the proceedings before the magistrate are criminal."

[147]

[45] The question of the standard of proof which applies in a taxation prosecution was considered by Williams J, sitting alone, in McGovern v Hillman Tobacco Pty Ltd[59] where his Honour held that as the proceedings were conducted in accordance with the usual practice and procedure of the Court in civil cases, the proceedings must, for many purposes, be considered as being in the nature of a civil action. The standard of proof was therefore the standard of proof required in civil cases. As the offences were serious offences, however, his Honour held that, following Briginshaw v Briginshaw[60] the Court must consider the evidence with great care and caution before it was satisfied that the offences had been committed. His Honour did however note that the discussion was really academic because, if the offences had to be proved "beyond all reasonable doubt",[61] then he was satisfied of the guilt of the defendants "beyond all reasonable doubt".

[148]

[46] Taxation prosecutions were also held to be civil proceedings by Stanley J of this Court in a judgment which shows that he was more convinced of the correctness of this view as a result of precedent rather than the application of principle. Referring to the similarity of the Sales Tax Assessment Act 1930, which he was considering, to the Income Tax Assessment Act 1936, his Honour observed:[62]

[149]

"The Statutes are sufficiently alike to make me feel bound by the stream of authority that these proceedings are civil and not criminal proceedings: (although I find it difficult to see why this complicated concept of taxation prosecutions should have been evolved by way of civil proceedings). However, I hold that these proceedings are civil proceedings."

[150]

[47] In Naismith v McGovern,[63] the High Court held[64] that the rules of discovery applied to taxation prosecutions because they were governed, in the absence of a special order, by the civil procedure of the court even though the proceedings for the recovery of penalties were of a penal nature. Accordingly the defendant had the right to obtain discovery against the plaintiff even though the plaintiff had no right to an order for discovery in his favour where the proceeding was of such a nature that it might result in a penalty or forfeiture.[65]

[151]

[48] In 1957, s 258 of the Customs Act, which allowed a Court to commit an offender liable to pay a pecuniary penalty to gaol until the penalty was paid or security for its payment given, was repealed.

[152]

[49] In the same year, Owen J in the Full Court of the Supreme Court of New South Wales, held in Ex parte Duffy; Re Automobile Advance Agency Co Ltd[66]:

[153]

"It seems to me that the nature of the proceedings is not to be determined by their result. If they can end in punishment, as for example by fine or imprisonment, they are criminal in their nature and they do not change their nature because in a particular case no punishment is in fact imposed."

[154]

Accordingly, although this provision under the Customs Act no longer provides for imprisonment, if it provides for other forms of punishment such as a fine, it might still be considered criminal.

[155]

[50] The High Court applied its rules relating to civil procedure to the question of amendment of the name of the plaintiff in Bainbridge-Hawker v The Minister of State for Trade and Customs.[67] In doing so, Webb J explicitly stated what was implicit in the Court's doing so, that is that "these are civil proceedings".[68] Kitto J, in dissent, observed:[69]

[156]

"Whether or not such a prosecution is to be regarded for all or some purposes as of a criminal nature, at least it is clear that the prosecution is a Crown matter. Only the Crown in right of the Commonwealth is intended to have any interest in the conviction of the defendant and in the imposition and enforcement of any penalty imposed."

[157]

[51] Henty v Bainbridge-Hawker[70] was a customs prosecution commenced in the original jurisdiction of the High Court, which was heard by Owen J. Carruthers J in Minister for Business and Consumer Affairs v Evans[71] set out the comments Owen J made with regard to the onus of proof:

[158]

"Before dealing with each of the shipments said to have been made I may mention a further general submission of law which was made relating to the nature of the onus of proof resting upon the plaintiff. Unaided by authority I would have thought that proof beyond reasonable doubt was required since, if the proceedings are successful, the proper order to be made is one convicting the defendant of an offence. I was, however, referred to what was said by Fullagar J in Jackson v Butterworth [1946] VicLawRp 51; [1946] VLR 330 at 332. In the present case I do not think it necessary to decide the question. The allegations made are very serious ones and I would not find any of them proved if I felt a reasonable doubt whether the offence had been committed."

[159]

[52] In Chinchen v Weiss,[72] McClemens J in the Supreme Court of New South Wales referred to a distinction drawn between civil and criminal matters depending on whether or not the proceedings may end in imprisonment.[73]

[160]

[53] Report of decisions made on the trial of customs prosecutions by High Court judges does little to elucidate the standard of proof required as a question of principle. In L Vogel & Son Pty Ltd v Anderson,[74] Kitto J makes no reference to it. In Scott v Geoghegan & Sons Pty Ltd,[75] Taylor J says that he is satisfied beyond reasonable doubt a number of offences were committed.

[161]

[54] The distinction between civil and criminal proceedings was raised in Commissioner for Motor Transport v Train.[76] Proceedings for a conviction for non-payment of road transport charges followed by a warrant of commitment for non-payment was held not to be a civil process. It was designed to punish the offender and not merely to collect the debt.[77] Walsh J held:[78]

[162]

"In determining the nature of the proceedings and of the orders made in them, the fact that the initial liability to pay the charges was a civil debt is important but is not, in my opinion, decisive. It is necessary to consider the form and the character of the action taken and the nature of the jurisdiction which is exercised by the court in which that action is taken. There can be no doubt, of course, that if an action for debt had been brought against the respondent in a court exercising civil jurisdiction that would have been a civil proceeding. But there was nothing in the Road Act or in the Justices Act, 1902 (NSW), as amended, to enable the appellant to take some alternative form of action, in which the recovery of the amount of the charges could be regarded as the sole or as the principal purpose of the proceedings. We need not decide in this case the question whether if the Act had enabled the appellant to make a claim, which was simply a claim to recover payment of the charges, before some particular court therein specified and had empowered that court to enforce by imprisonment any judgment or order for payment given or made by it, such a proceeding and the orders made in it would have been of a civil nature. It may be that they could be properly so described. But what is, in my opinion, of great importance in this case is that, apart from an ordinary civil action in a court of civil jurisdiction, the only way by which any order could be obtained for the payment of the charges was to bring a prosecution for an offence against the Road Act and to obtain a conviction for that offence. Such a prosecution was without doubt a criminal proceeding."

[163]

[55] Proceedings for a penalty under s 119 of the Conciliation and Arbitration Act 1904 for a breach of an award had also resulted in differences in judicial opinion[79] as to whether the civil or criminal burden of proof applied.[80] As a result, in Gapes v Commercial Bank of Australia Ltd [81] five judges sat in the Full Court of the Federal Court in order to determine the appropriate burden of proof, but as a preliminary question the court considered the competence of the appeal. The appeal would not have been competent under s 24(1)(a) of the Federal Court of Australia Act 1976 if the proceedings were criminal in nature. All of the judges agreed that proceedings under s 119 for the recovery of penalties were not criminal proceedings and consequently an appeal lay from the dismissal of those proceedings.

[164]

[56] Deane J drew attention to the traditional distinction between proceedings for a penalty and criminal proceedings and held that the category into which a particular matter fell must depend on the legislative intent appearing from the provisions of the relevant statute.[82] In particular, the Court compared s 119 with those sections of the Conciliation and Arbitration Act 1904, breach of which constituted an offence, in determining that s 119 was a provision imposing a penalty but not one creating a criminal offence. J B Sweeney J,[83] who wrote the leading judgment, referred with approval to the statement by Lord Goddard CJ in Brown v Allweather Mechanical Grouting Co Ltd[84] that even the description in a statute of a prohibited act or omission or an "offence" does not necessarily mean that it is a criminal offence.

[165]

[57] In 1982, the Customs and Excise Amendment Act repealed s 212 of the Customs Act which allowed a Court to imprison any person convicted of a customs offence for which a pecuniary penalty was provided in the event that such a person had been previously convicted of any similar offence. Oddly enough and perhaps anomalously, s 261 provides that the suffering of imprisonment for non-payment of a penalty does not release the penalty.

[166]

[58] In The Queen v Smithers; Ex parte McMillan,[85] the High Court ruled on the constitutional validity of those sections of the Customs Act which provide for a pecuniary penalty in respect of dealing in prescribed narcotics. The Court drew the traditional distinction between the imposition of a penalty or fine by way of punishment for a criminal offence and the imposition of a civil liability for pecuniary penalties as found in the Customs Act.[86] It should however be noted the customs prosecutions which are the subject of this case are proceeding for the recovery of penalties other than the pecuniary penalties referred to in s 243B of the Customs Act.[87]

[167]

[59] The question of the onus of proof applicable to customs prosecutions was specifically considered by Carruthers J in Minister of Business and Consumer Affairs v Evans, in the Supreme Court of New South Wales.[88] His Honour applied the civil procedure rules of the Supreme Court to the question of whether or not the pleading could be amended. After surveying the cases decided in England and Australia that are relevant to this question, his Honour said that the question of burden of proof did not appear to be important in this case, but in his opinion the proceeding was civil and not criminal in character.

[168]

[60] His Honour ruled that[89] the standard proof required to establish the commission of an offence under s 245 of the Customs Act was not that of proof beyond reasonable doubt. The standard was the civil standard, that is, upon a preponderance of probability subject to the law of prudence that the court must examine the evidence with great care and caution before it is satisfied that an offence has been established. His reasons for doing so were that it had been authoritatively established that proceedings under s 245 are not criminal in nature.[90] They had been clearly categorised by high authority, his Honour said, as civil proceedings. He therefore thought it inappropriate that the criminal standard of proof should be applicable to them.

[169]

[61] His Honour said he was faced with two apparently conflicting decisions of judges of the High Court, namely Williams J in McGovern v Hillman Tobacco Pty Ltd [91] and Taylor J in Scott v Geoghegan & Sons Pty Ltd.[92] In all the circumstances his Honour said that he felt constrained to follow the judgment of Williams J because he was clearly deciding a matter in issue between the parties. The words used by Taylor J were open to the construction that his Honour was satisfied beyond reasonable doubt of the commission of the offences and therefore did not consider it necessary whether any lesser onus was applicable. His Honour also took into consideration that the judgment of Williams J was consistent with that of Fullagar J in Jackson v Butterworth.[93]

[170]

[62] This decision was upheld on appeal in Evans v Button[94] Mahoney JA wrote the leading decision with which Priestley and McHugh JJA agreed. His Honour held[95] that Carruthers J applied the appropriate civil standard of proof although he had recorded that the evidence would have satisfied him beyond reasonable doubt in any event.

[171]

[63] Mahoney JA dealt more broadly with the question of whether the proceedings were criminal or civil. His Honour held that:[96]

[172]

"The principle that the incidents of particular contraventions of the law are to be determined by classifying such contraventions as criminal or civil, or the proceedings as criminal or civil proceedings, and then allocating the incidents of the criminal law or the civil law to the particular breach, has long been recognised: see Halsbury's Laws of England, 1st ed (1909) vol 9, pars 499-500 at 232-233; 4th ed, (1976), vol 11, pars 1-2 at 11. But such a principle has difficulties, both in the expression of it and its application. Thus, the distinction is conventionally based upon the view that: "Civil proceedings have for their object the recovery of money or other property, or the enforcement of a right or advantage on behalf of the plaintiff: criminal proceedings have for their object the punishment of a person who has committed a crime": Halsbury, 4th ed, par 2 at 11; 1st ed, par 499(c) at 233. But, in the case at least of a penalty of the present kind, it might be thought that the object of the penalty, and so of proceedings to recover it, is the punishment of the person who has contravened the relevant statute or rule of law. And, in practice, words such as "offence" and "criminal" are apt to be misleading for they are applied both to contraventions which are criminal in nature and also to contraventions which give rise only to civil remedies: when used for the purpose of determining, for example, incidents of a particular breach, a particular proceeding, or an appeal in respect of them: see, for example, the observations of Latham CJ and of Dixon J in Mallan v Lee [1949] HCA 48; (1949) 80 CLR 198 at 206-207, 217; see generally Li Chia Hsing v Rankin [1978] HCA 56; (1978) 141 CLR 182 at 201 and R v Justices of the Appeals Committee of the County of London Quarter Sessions [1946] KB 176 at 182-185.

[173]

In the Customs Act (Cth), provision has, in my opinion, been made for determining the incidents of customs prosecutions. Section 247 of the Customs Act (Cth) provides:

[174]

`Every Customs prosecution in a Supreme Court may be commenced prosecuted and proceeded with in accordance with any rules of practice 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.'

[175]

It was, in my opinion, the purpose of that provision relevantly to assimilate customs prosecutions to proceedings of a civil nature: cf State v Judge Fawsitt [1945] IR 183 at 193 and R v Justices of the Appeals Committee of the County of London Quarter Sessions (at 184). It was, in my opinion, the legislative purpose that Customs prosecutions, when brought in the Supreme Court, should be subject, inter alia, to the powers of amendment appropriate to such proceedings. This, in my opinion, is sufficient to dispose generally of the submission made for Mr Evans in this regard.

[176]

But what I have said does not mean that in every respect the rights of a defendant in such a prosecution are congruent with those of a defendant in an ordinary civil proceeding. The court will be conscious in such a proceeding of the fact that what is involved is a breach of the public law, that the penalties in question are intended as sanctions for breach of the public law, and that the offences in question may carry with them the opprobrium appropriate to breaches of such law. It will have regard to the seriousness, in the individual case, of the punishment involved in an order that such penalties be paid. The learned judge, in my opinion, was conscious of these considerations. He referred to them, in his judgment, in relation to the onus of proof of the matters in question. In considering the amendment of the statement of claim he followed the principle applicable in civil cases that appropriate amendments should be granted if they may be granted without demonstrable irreversible or irreparable prejudice to the defendant. However, his Honour was careful to indicate that he was conscious of the considerations to which Mr Burbidge QC referred arising from the criminal or quasi criminal nature of the proceedings. I see nothing wrong in what his Honour did. If what was to be done would cause prejudice to the defendant in a relevant criminal sense, in substance, or in form, that would carry considerable weight. But, here, the defendant did not seek to rely upon any such prejudice, I see no error in his Honour's application of the principles. In my opinion, therefore, this submission should not be accepted."

[177]

[64] In 1985 de Jersey J (as his Honour then was) held, in a decision to which I have already referred, that the plaintiff in a customs prosecution bore the onus of proof to the civil standard of the balance of probabilities.[97]

[178]

[65] However, later in the same year the Full Court of the Federal Court[98] decided that a person who contravened s 234 of the Customs Act 1901 was guilty of an infringement of the criminal law rather than merely a breach of the civil law. Pincus J drew attention to the wording of s 234 of the Customs Act[99] in holding:[100]

[179]

"Contraventions of s 234(1) may lead to a person's being held guilty of an offence punishable upon conviction - subs (2) says so. It is not easy to see what language the legislature could have selected more plainly to indicate the intention that those who contravene have infringed the criminal law rather than being guilty merely of a breach of the civil law."

[180]

[66] In the following year the Full Court of the Federal Court in The Heating Centre Pty Ltd v Trade Practices Commission[101] considered the standard of proof that applied to proceedings for pecuniary penalties for a contravention of s 48 of the Trade Practices Act 1974 which provided:

[181]

"A corporation or other person shall not engage in the practice of resale price maintenance."

[182]

The consequences of such a breach were proscribed, inter alia, by s 76 of the Trade Practices Act which empowered the Federal Court to impose pecuniary penalties in respect of each act or omission. Section 78 of the Trade Practices Act provides that criminal proceedings do not lie against a person for a contravention of a provision of Part IV of the Trade Practices Act. Section 48 is found in Part IV. In dealing with the burden of proof Pincus J observed:[102]

[183]

"Counsel for the appellant submitted that, although s 78 provides that criminal proceedings do not lie for contravention of Pt IV, in which s 48 is to be found, nevertheless the criminal standard of proof applies. He emphasised the size of the pecuniary penalties provided by s 76 and suggested that although Parliament had elected to avoid attaching the stigma of criminality to contraventions of Pt IV, proceedings under that section were in substance criminal proceedings.

[184]

Whatever may be the reason for the distinction, the position is that the Act clearly characterises proceedings under s 76 as civil: see s 78 and contrast with s 79, while equally clearly characterising proceedings for a penalty in respect of a breach of Pt V of the Act as criminal proceedings. In so doing, Parliament must be taken to have intended that the court would apply the respective standards of proof applicable to each category. It is, of course, an attribute of civil proceedings that the necessary facts must be proved on the balance of probabilities, but, of course, taking into account the gravity of the matters alleged: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691.

[185]

Counsel also submitted that, if the criminal standard was not applicable, then, in view of the penalties imposed, the civil standard should have been so modified in favour of the appellant as to be very little different from the criminal standard. However, that contention is inconsistent with the decision of the High Court in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517. The question whether there is any substantial difference between the civil standard, where fraud is alleged, and the criminal standard was critical there, because a new trial was sought on the ground that the case had been decided on the criminal standard. That relief was granted, the Court remarking (at 521-522):

[186]

`The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 per Dixon, Evatt, and McTiernan JJ at 714.'"

[187]

[67] In 1987 the Australian Law Reform Commission published its report on Evidence,[103] which made a number of recommendations and included a draft Evidence Bill and Explanatory Memorandum. It made recommendations as to the standard of proof required in civil and criminal matters, that follow the traditional formulation. Civil and criminal matters were defined in s 3 of the Evidence Bill as follows:

[188]

"`civil proceeding' means a proceeding in a court, other than a criminal proceeding;"

[189]

"`criminal proceeding' means a prosecution in a court for an offence and includes a proceeding for the commitment of a person for trial for an offence."

[190]

[68] The Report, which recommended these provisions, in its commentary[104] said that a "criminal proceeding is defined as a prosecution in a court (that is, a federal or Territory court) for an offence. It includes committal proceedings. All other proceedings in such courts are classed as civil proceedings. Civil proceedings include civil proceedings for penalties".

[191]

[69] The Explanatory Memorandum to the draft bill said with regard to the definition of civil proceeding that it included proceedings for the recovery of penalties such as penalties recoverable by civil action under the Trade Practices Act 1974.[105]

[192]

[70] In Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce,[106] the Court of Appeal of the Supreme Court of New South Wales dismissed an appeal from a decision of Hunt J refusing a stay of proceedings for offences under the Customs Act. Hunt J held that the proceedings were criminal proceedings, but applied the test pertaining to the stay of civil matters because of s 247 of the Customs Act.

[193]

[71] Kirby P[107] said that on the face of s 234 of the Customs Act, the proceedings would appear to be criminal in nature. This was because the Part in which this section appears is entitled "Penal Provisions", the section heading is "Customs Offences" and the section is expressed in the language of criminal offences. The proceedings involved the invocation of the public law of the Commonwealth and the penalty is a sanction for a breach of that law and not just a civil claim. His Honour held[108] that the sanction imposed was punitive rather than compensatory in nature.

[194]

[72] In his view, this was a hybrid type of action so that although for some purposes the nature of a customs prosecution for the recovery of a penalty might be assimilated to civil process as s 247 contemplated,[109] s 247 did not alter the fundamental nature of the proceedings for offences expressed in terms of criminal wrong doing. As examples of the way in which civil procedure might apply to such prosecutions, his Honour referred to the proper court in which an appeal should be brought,[110] orders for discovery,[111] and the burden of proof. His Honour held:[112]

[195]

"In R & FCT v McStay (1945) 3 AITR 209 Williams J in the High Court held that prosecutions under Pt VII of the Income Tax Assessment Act 1936 (Cth) were not strictly criminal proceedings. The standard of proof in the proceedings was civil. But because serious offences were involved, the court must `examine the evidence with great care and caution'. Briginshaw was applied. In many cases the distinction between civil and criminal proceedings will be academic as it was in McGovern v Hillman Tobacco Pty Ltd (1949) 4 AITR 272 and 275, Williams J."

[196]

His Honour held[113] that for the purposes of the categorisation of an application for a stay for abuse of process, the proceedings were much more closely akin to criminal proceedings than to purely civil litigation. Mahoney and Clarke JJA did not decide whether the matter was to be considered as a criminal or a civil proceeding or a hybrid of the two.

[197]

[73] In 1989, the Customs Act and Excise Act were amended by the repeal of s 245(3) and s 134(3) respectively which applied only to those prosecutions commenced in the Magistrates Court. As a result the same procedure applied to prosecutions in all of the Courts and the distinction which led to them being considered criminal proceedings in the Magistrates Courts and civil proceedings in the Supreme and District Courts was abolished.[114]

[198]

[74] In its report on Customs and Excise,[115] the Australian Law Reform Commission said that the present situation with regard to customs prosecutions was unsatisfactory and would contribute to continuing uncertainty.[116] The Commission was of the view that it was desirable to put an end to the extensive legal argument which uncertainty on this issue had generated and said that that would be achieved if the true criminal nature of the proceedings were recognised.[117] The Law Reform Commission recommended that the offences be prosecuted summarily. This was designed to avoid the effect of s 80 of the Constitution which provides, in part, that "the trial on indictment of any offence against a law of the Commonwealth shall be by jury".[118] The Commission however said that it recognised that the current state of the law at the time of the report was that the standard of proof was on the balance of probabilities subject to the rule of prudence that the court must examine the evidence with great care and caution before it is satisfied that an offence has been established.

[199]

[75] In the Supreme Court of Victoria, Byrne J in Comptroller-General of Customs v Jayakody[119] stated with regard to the onus of proof:

[200]

"The question which falls for my consideration is whether the effect of s 247 of itself or in conjunction with other aspects of the proceeding calls for the application of the civil standard of proof for a Customs Prosecution.

[201]

If the matter were free of authority I should have little hesitation in concluding that s 247 does not import the civil standard to Customs Prosecutions. In my view s 247 is a section which is concerned with the practice and procedure adopted by the Court in order to bring the matter for trial and determination. While it may be correct in certain circumstances to say that the imposition of the criminal or civil standard of proof is a matter of practice or procedure, it does not fall within the traditional definition of these concepts."

[202]

His Honour then referred to the considerable body of dicta in support of the proposition that the civil standard was the appropriate one.[120] His Honour's conclusion was that there was a substantial and authoritative body of opinion that, in customs prosecutions brought in the courts other than courts of summary jurisdiction, the appropriate standard is the civil one.[121] He concluded:[122]

[203]

"It would be very undesirable if the attitude of these courts upon a matter as fundamental as the standard of proof should differ. It will be evident from what I have written that I have some difficulty with the application of the civil standard to cases such as that which is before me. I conclude, nonetheless, that I should submit to the weight of authority and accept that this is the standard of proof which should apply. Needless to say, I acknowledge that in applying that standard, I must do so in the manner referred to in the dictum of Fullagar J in Jackson v Butterworth set out above. This requires that I examine the evidence with particular care so that any finding I make is made only where the plaintiff's case has been clearly established."

[204]

[76] The Court of Criminal Appeal in New South Wales in Comptroller-General of Customs v D'Aquino Bros Pty Ltd[123] considered a case stated by a District Court judge as to a number of questions of law regarding customs and excise prosecutions. After briefly examining the "peculiar" history of such prosecutions, Hunt CJ at CL, with whom Ireland and Dowd JJ agreed, observed with regard to the burden of proof:[124]

[205]

"It has never been determined authoritatively (that is, at a level higher than a first instance judge) as to whether the onus of proof is to be discharged in accordance with the criminal or the civil standard, although the preponderant view is that it is the civil standard."

[206]

The footnote to this passage says:[125]

[207]

"The decisions are helpfully discussed by Carruthers J in Button v Evans [1984] 2 NSWLR 338 at 349-353, who ruled that it is the civil standard of proof which applies, at least in proceedings in the Supreme Court."

[208]

And yet Hunt CJ maintained the view that he said he had earlier expressed in Moore v Jack Brabham Holdings Pty Ltd,[126] that these prosecutions which are punishable on conviction were proceedings in relation to criminal offences and thus of a criminal nature.[127]

[209]

[77] It is interesting to compare cases in this area of the law to those in the field of contempt. Proceedings for contempt of court normally proceed in the civil jurisdiction of the court. As a result, for example, they usually attract the rule that ordinarily costs follow the event.[128] However, it is the criminal standard of proof which applies to a conviction for contempt.[129] Deane J questioned the categorisation of contempt of court as criminal or civil. His Honour expressed the view that such a distinction should no longer be accepted in Australia because punishment for contempt of court included the possibility of imposition of a fine or imprisonment. His Honour held:[130]

[210]

"The classification for contempts of court as criminal or civil has, in the past, involved the anomaly that some contempts have been classed as civil notwithstanding that they have been or may be visited with the consequences of imprisonment or fine . . . . Such anomaly may have been susceptible of rationalization in past times: . . . . It should no longer be accepted in this country where, regardless of whether it be imposed in proceedings brought by the Attorney-General or some other official acting in the public interest or by a private individual for the indirect or coercive enforcement of a civil order, imprisonment or fine as a consequence of a finding of contempt of court cannot be justified otherwise than as a punishment for past or continuing breach of law. Proceedings seeking the imposition of such punishment upon an alleged contemnor (or an order for sequestration in the case of a company) must realistically be seen as essentially criminal in nature: . . . . In any event, it is plain that the offences of which the present appellants were found guilty and for which they have been sentenced were, even on traditional classification, criminal contempts and that the proceedings giving rise to the present appeals were, as the learned trial judge held, criminal in nature.

[211]

Viewed in the context of the common law, there are some unusual features of both the offence of contempt of court by publication and the criminal procedure for its punishment. Thus, as has been said, it is not necessary that the publication be made with an actual purpose or intention of prejudicing the due administration of justice. In that sense, there is no full requirement of mens rea. Again, the procedure for the punishment of the offence is summary in character regardless of penalty and the content of punishment is, to an extent that is quite undesirable, left to judicial discretion. Notwithstanding such unusual features however, there can, in my view, be no room for doubting that the onus of proof which must be satisfied in criminal proceedings for punishment of an offence of contempt of court, such as the proceedings in the present case, is the ordinary criminal onus of proof beyond reasonable doubt . . . . It was that criminal onus which had to be satisfied in the present case."

[212]

[78] In Witham v Holloway,[131] the High Court held that, as all proceedings for contempt whether for civil or criminal contempt must realistically be seen as criminal in nature, all charges of contempt must be proved beyond reasonable doubt.[132] In doing so, it considered the centuries old rationale for the distinction that civil proceedings for contempt are essentially coercive or remedial in nature whereas proceedings for criminal contempt are essentially punitive but said such a distinction was no longer sustainable.[133] In those circumstances there was no longer any justification for retaining different standards of proof. If the object or effect is punitive, then the burden of proof required is beyond reasonable doubt.[134]

[213]

[79] In 1994 New South Wales and in 1995 the Commonwealth passed an Evidence Act in substantially identical terms. Sections 140 and 141 deal with the standard of proof. Section 140 provides that the standard of proof in a civil proceeding is proof on the balance of probabilities. Section 141(1) provides that in a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied it has been proved beyond reasonable doubt. There is no kind of proceeding other than a civil or a criminal proceeding. A civil proceeding is defined to mean a proceeding other than a criminal proceeding.

[214]

[80] Criminal proceedings are defined in the dictionary which is a Schedule to the Act. It provides:

[215]

"criminal proceeding means a prosecution for an offence and includes:

[216]

(a) a Proceeding for the committal of a person for trial or sentence for an offence; and

[217]

but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953."

[218]

"Offence" is defined as meaning "an offence against or arising under an Australian law". The sections of the Customs Act and the Excise Act on which the plaintiff relies arguably suggest that this proceeding is a prosecution for offences under Australian law and so would fall within the definition of a criminal proceeding.

[219]

[81] However, when one looks at the Australian Law Reform Commission report[135] on which this Act was based, it is arguable that civil proceedings were intended to include a civil proceeding for a penalty such as this. Extrinsic material, such as a law reform commission report, may be only to be used to confirm that the meaning is the ordinary meaning of the provision or to determine the meaning where the provision is ambiguous or obscure, as it is in this case, or where the ordinary meaning leads to a result that is manifestly absurd or unreasonable.[136]

[220]

[82] In support of this interpretation, there are a number of sections of the Act which refer to a distinction between the commission of an offence and liability to a civil penalty.[137] In addition, s 3 of the Schedule provides:

[221]

"For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country."

[222]

This section suggests that liability for a civil penalty does not make a proceeding a criminal proceeding. On the other hand, the definition of criminal proceedings specifically excludes income tax prosecutions but not customs or excise prosecutions. It is not necessary for me to express a concluded view on this matter as neither Act applies in this jurisdiction to this problem.

[223]

[83] Section 4 of the Evidence Act 1995 (Cth) provides it applies to proceedings in a federal court or an ACT court. Section 4 of the Evidence Act 1994 (NSW) provides that it applies to all proceedings in a New South Wales court.

[224]

[84] Section 79 of the Judiciary Act 1903 provides:

[225]

"The laws of each State or Territory, including the laws relating to procedure, evidence and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

[226]

As a result, one must go to the Queensland Evidence Act 1977. That Act does not deal with the burden of proof. However it does provide that:

[227]

"`criminal proceeding' includes a proceeding wherein a person is charged with a simple offence, and an examination of witnesses in relation to an indictable offence."

[228]

This inclusive definition does not mention prosecutions of the type under consideration.

[229]

[85] Sully J considered the appropriate standard of proof in an ex tempore judgment in the course of an excise prosecution in Comptroller-General of Customs v Kingswood Distillery Pty Limited.[138] After referring to the decision of Comptroller-General of Customs v Jayakody, [139] his Honour observed that,[140] were the matter free from authority, he would see at least the logical possibility of approaching the matter in the way McHugh J did in Witham v Holloway[141] that is that many people in contemporary society would be offended by the notion that a person may be exposed to the risk of draconian penalties and associated ancillary orders upon proof not proceeding beyond proof upon the balance of probabilities.

[230]

[86] However his Honour concluded[142] that leaving to one side the decision of the High Court in Witham v Holloway,[143] he would be comfortably satisfied that the better view, as best it could be divined from such judicial authority as was available, was that principal proceedings of the kind in question were in their essential nature civil rather than criminal, and appropriate, therefore, to attract the conventional civil standard of proof rather than the conventional criminal standard. His Honour was of the view that the High Court's decision in Witham v Holloway,[144] dealing as it did with contempt of court, was irrelevant to the question in hand.

[231]

[87] Sully J considered the effect of the New South Wales Evidence Act and s 79 of the Judiciary Act 1903 on this question. In his Honour's view the Evidence Act draws a relevant distinction between proceedings for a civil penalty and a prosecution for an offence. This was a proceeding for a civil penalty and his Honour therefore came to the conclusion that:[145]

[232]

"the appropriate standard of proof to be applied in the resolution of the ultimate issues for trial in the present principal proceedings is the conventional civil standard of proof upon the balance of the relevant probabilities, but conditioned by the principles established by the decision, earlier cited, in Briginshaw."

[233]

[88] When Carruthers AJ next considered the question of the burden of proof in his decision on interlocutory questions in Francis Ivor Kelly Comptroller-General of Customs v JCT Wong and Rizoli Pty Ltd [146] his Honour held[147] that the decision of the Court of Appeal in Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce[148] did not disturb the earlier decision of that Court in Evans v Button. Accordingly he applied the civil standard of proof. His Honour also ruled that a customs prosecution is not a criminal offence within the meaning of that phrase in the Evidence Act.[149] In his final determination of the matter, however,[150] Carruthers AJ said that he was satisfied to the Briginshaw standard of proof but that if it were necessary, he would be satisfied of these matters on the criminal standard of proof.

[234]

[89] The appeal in this matter was decided by the Court of Appeal of the Supreme Court of New South Wales on 6 December 1999.[151] Stein JA, with whom Mason P and Meagher JA agreed, upheld the decision of Carruthers AJ that the proceedings were civil rather than criminal. His Honour held:

[235]

"[59] Whether customs prosecutions are criminal or civil has been a vexed question for the courts. The preponderance of authority is that they are proceedings of a civil nature. Carruthers AJ so found in his ruling on 29 April 1998.

[236]

[60] In Evans v Button (1988) 13 NSWLR 57 the court held that the purpose of s 247 of the Customs Act was to assimilate customs prosecutions to proceedings of a civil nature. The section provides:

[237]

`Every Customs prosecution in a court referred to in s 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court or Crown suits in venue matters or in accordance with the usual practice and procedure of the Court in civil cases ...'

[238]

[61] Mahoney JA, with whom Priestley and McHugh JJA agreed said:

[239]

`It was, in my opinion, the purpose of that provision relevantly to assimilate customs prosecutions to proceedings of a civil nature; cf State v Judge Fawsitt [1945] IR 183 at 193 and R v Justices of the Appeals Committee of the Country of London Quarter Sessions (at 184). It was, in my opinion, the legislative purpose that Customs prosecutions, when brought in the Supreme Court, should be subject, inter alia, to the powers of amendment appropriate to such proceedings. [at 74]'

[240]

[62] I agree with Carruthers AJ that Jack Brabham Holdings v Minister (1998) 85 ALR 640 did not disturb the authority of Evans v Button, which has been applied on a number of occasions. See Kelly v JRA Ltd (1990) 92 ALR 651 and Comptroller-General of Customs v Kingswood Distillery Pty Ltd (Sully J, unreported, NSW Supreme Court, 11 February 1997). In addition, the judgment of Byrne J in Comptroller-General of Customs v Jayakody (unreported, Supreme Court of Victoria, 9 November 1993) and Pearce v Button (1985) 8 FCR 388 (Pincus J) are also very helpful.

[241]

[63] Notwithstanding the passage of the Evidence Act 1995 (NSW) Evans v Button is still good law. If there be any inconsistency, and I am unpersuaded that there is, the Federal statute prevails and the Evidence Act needs to be read so as to accommodate any inconsistency. This follows from the provision in s 79 of the Judiciary Act 1903 (Cth).

[242]

[64] In my opinion, Carruthers AJ was right to treat the proceedings before him as civil and not criminal proceedings and apply the standard of proof in Briginshaw [1938] HCA 34; (1938) 60 CLR 336."

[243]

As this is a decision of an intermediate appellate court on Commonwealth legislation, I am obliged to follow this decision unless convinced that it is clearly wrong.[152]

[244]

[90] This year the Court of Appeal of the Supreme Court of Queensland has confirmed in Preston v Chief Executive Officer of Customs[153] that the civil procedure of the court applies to proceedings for the recovery of penalties under the Excise Act, known as excise prosecutions. This is in accordance with the decision of the New South Wales Court of Appeal in Comptroller-General of Customs v D'Aquino Brothers Pty Ltd.[154] The Court rejected an argument that the criminal standard of proof modified the operation of the Uniform Civil Procedure Rules in such a prosecution and held that the UCPR applied "with full force".[155] The Court held that there was no relevant difference in the use of the words "fine" and "penalty".

[245]

[91] There is a further matter to which I should refer. It does appear that there is a sound argument that if a person on whom a penalty or fine is imposed by this Court fails to pay that fine or penalty, the person may be liable to imprisonment. Section 15A(1) of the Crimes Act applies State law relating to the enforcement or recovery of a fine imposed on an offender to a person convicted in the State of an offence against the law of the Commonwealth. Section 182A(1) of the Penalties and Sentences Act 1992 (Qld) provides that, if the court orders an offender to pay a penalty and the offender fails to pay the penalty immediately or within the time allowed by the court in its order, the court may then order that the offender is to be imprisoned for a term calculated under subsection 182A(2)(a), that is to a maximum of 14 days imprisonment for every $75 of penalty imposed. In this case that would warrant a substantial period of imprisonment.

[246]

[92] If the court did not order imprisonment in default of payment of the penalty and the penalty is not paid, the court may order imprisonment or execution against the property of the offender. If the penalty is still not satisfied then the court may order imprisonment of a similar period to that described in the last paragraph.[156] An offender may be liable to imprisonment for non-payment of a fine in much more limited circumstances in New South Wales.[157]

[247]

[93] In this case, the total amount sought by the plaintiff upon conviction of the defendants for evasion of excise duty, customs duty and sales tax is $1,290,959.15. This sum amounts to 17, 213 penalty units which could potentially give rise to a maximum penalty of 662 years imprisonment. Even if imprisonment for each individual evasion of duty was served concurrently and not cumulatively,[158] the defendants could still be liable to serve a maximum of 68 years imprisonment. This is clearly an absurd result.

[248]

[94] Section 259 of the Customs Act 1901 provides for the Collector of Customs to levy an unpaid pecuniary penalty by sale of any goods belonging to the person who has not paid the pecuniary penalty. This is similar to the writ of fieri facias as provided for in Part 5, Division 16 of the Supreme Court Act 1995. This tends to suggest that the action, at least to imprison, would be in the criminal rather than the civil jurisdiction of the Court as arrest on mesne process in any civil action, except in limited circumstances not here relevant, has been abolished.[159] A person may be imprisoned for non-payment of a fine or penalty but not for non-payment of a debt. Section 261 of the Customs Act clearly contemplates that a person may be imprisoned for non-payment of a penalty.

[249]

[95] The plaintiff submits that features of Part XIV of the Customs Act and Part XI of the Excise Act indicate that the proceedings are not criminal. The Chief Executive Officer can appeal against a verdict and judgment entered for the defendant whereas the Crown has no right to appeal a jury verdict of not guilty in a criminal trial. A defendant in a criminal proceedings is not competent to give evidence for the prosecution.[160] Section 254(1) of the Customs Act and s 143(1) of the Excise Act provide to the contrary for certain customs and excise prosecutions. A defendant in a criminal proceeding is not compellable to give evidence for the prosecution[161] whereas s 254 (2) of the Customs Act and s 143(2) of the Excise Act provide to the contrary for certain customs and excise prosecutions. of the and of the authorise averment in the Statement of Claim which becomes prima facie evidence of the matters averred. These factors, in my view, tend to show the draconian nature of the proceedings.

[250]

[96] For the aiding and abetting charges, the plaintiff relies on s 236 of the Customs Act for the customs prosecutions and s 5(1) of the Crimes Act for the excise prosecutions.[162] However both provide that the aider and abettor is deemed to have committed the same offence as the principal offender.[163]

[251]

[97] If proceedings are criminal then it almost goes without saying that it is an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond reasonable doubt.[164] The onus of proof in civil proceedings is on the balance of probabilities. The plaintiff must make out his or her case to the reasonable satisfaction of the tribunal. However, the degree of certainty required may be affected by the seriousness of the issues in dispute. As Dixon J held in Briginshaw v Briginshaw:[165]

[252]

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

[253]

So in a civil proceeding, when a question arises as to whether a crime has been committed, the standard of persuasion is the same as upon other civil issues but weight is given to the presumption of innocence and exactness of proof is required.

[254]

[98] Customs and excise prosecutions are not trials on indictment so they do not require trial by jury.[166] In those circumstances the use of the civil procedure in courts whose criminal jurisdiction otherwise requires trial by jury can be justified.[167] It is less easy to justify the continuation of the civil burden of proof to prosecutions for offences leading to convictions upon findings of guilt and the imposition of punishment by way of fines and penalties and possibly jeopardy of imprisonment for non-payment of the fines or penalties.

[255]

[99] Factors which suggest that these prosecutions are or should be considered as criminal proceedings subject to the criminal standard of proof include:-

[256]

1. the language of the sections, dealing as they do with prosecutions leading, upon findings of guilt, to convictions for offences and the imposition of penalties or fines is entirely consistent with the contraventions being breaches of the criminal law;

[257]

2. the possibility of imprisonment for failure or neglect to pay any fine or penalty imposed;

[258]

3. the proceedings are brought by a public authority;

[259]

4. the proceedings are not merely for recovery of debts due to the Commonwealth but are in the nature of punishment rather than merely compensation;

[260]

5. there is no provision, unlike s 78 of the Trade Practices Act, which provides that these proceedings are not criminal proceedings;

[261]

6. unlike income tax prosecutions, these offences are not exempted from the definition of criminal proceedings in the Evidence Act of the Commonwealth or New South Wales;

[262]

7. the historical origin of these proceedings as criminal process;

[263]

8. the offences may be considered criminal offences as offences against the public revenue are legally indistinguishable from cheating a private individual;

[264]

9. many eminent judges have expressed doubts as to the classification of these proceedings as civil proceedings;[168]

[265]

10. the Court of Appeal of the Supreme Court of New South Wales has held that the proceedings are of a hybrid nature. Although civil procedure is used, the fundamental nature of the proceedings is that they are for offences expressed in terms of criminal wrong doing;

[266]

11. the fact that the civil procedure of the court is invoked does not necessarily mean that these are civil proceedings or that the civil standard of proof applies;

[267]

12. it is no longer acceptable that prosecution by a public authority for offences which upon a finding of guilt may lead to punishment whether by a fine or, in default of payment, by imprisonment can be proved according to the civil standard rather then the criminal standard.

[268]

[100] On the other hand factors which suggest that these proceedings are civil proceedings subject to the civil standard of proof include:-

[269]

1. the provision of the Customs Act that they are to be determined according to the civil procedure of the Court;

[270]

2. the nature of the procedure rather than of the act complained of is the test of whether the matter is criminal or civil;

[271]

3. the historical basis of these prosecutions in the revenue side of the Court of Exchequer and subsequently the Exchequer Division and then the Queen's Bench Division of the High Court, including the historical distinction between summary prosecutions before the justices which were considered to be criminal proceedings and civil proceedings in the revenue court for the recovery of money owed;

[272]

4. the defendant is not in immediate jeopardy of imprisonment for a breach of the Customs Act or the Excise Act;

[273]

5. the view of Brett MR in the Court of Appeal in England in Attorney-General v Bradlaugh that the proceedings were civil proceedings has been followed in many English and Australian cases;

[274]

6. the Court of Appeal in New South Wales has determined that these are civil proceedings subject to the civil standard of proof;

[275]

7. This Court has previously held that the civil standard of proof applies.

[276]

[101] It is surely time that parliament put this matter beyond doubt by stating whether or not the matters are civil or criminal proceedings and the appropriate burden of proof, as previously recommended by the Australian Law Reform Commission. In the meantime, however, the overwhelming body of authority compels me to accept the view that, unless there is legislative change or a contrary decision of a higher court, the standard of proof is the civil standard, that is on the balance of convenience subject to the rule of prudence that the court must examine the evidence with great care and caution before it is satisfied that an offence has been established[169] and that the prosecutions are not criminal proceedings for the purposes of the Evidence Act 1977.

[277]

[102] It follows that the answers to the questions are:

[278]

[1] Customs Act 1901 s 244; Excise Act 1901 s 133.

[279]

[2] s 136 of the Excise Act is in similar terms.

[280]

[3] Naismith v McGovern [1953] HCA 59; (1953) 90 CLR 336 at 339.

[281]

[4] [1986] 1 QdR 455.

[282]

[5] Foster v Cockburn (1745) Parker 57 at 69; 145 ER 712 at 716; Cawthorne v Campbell, Lowndes (1790) 1 Anst 205 at 221; 145 ER 846 at 853; The Attorney-General v Halling [1846] EngR 829; (1846) 15 M & W 687 at 693-697; [1846] EngR 829; 153 ER 1027 at 1029-1031.

[283]

[6] 36, 37 Victoria c 66, s 34.

[284]

[7] 44, 45 Victoria c 68 s 25; Order in Council, 16 December 1880 which came into force on 26 February 1881.

[285]

[8] Note the discussion by Byrne J in Comptroller-General of Customs v Jayakody Vic SC No 4657 of 1992, 9 November 1993 at 3-15.

[286]

[9] Blackstone's Commentaries, 8th ed, Vol 4, pp 308-309.

[287]

[10] (1822) 11 Price 183, at 197; 147 ER 441 at 446

[288]

[11] [1854] EngR 636; (1854) 10 Ex 84; 156 ER 366.

[289]

[12] Section 3 of 14 and 15 Vict c. 99 provided that nothing therein contained should render any person in any criminal proceeding who was charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or render any person compellable to answer any question tending to criminate himself or herself, or in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband. The prisoner was allowed to give evidence only after the passage of The Criminal Evidence Act 1898 (61 & 62 Vict c. 36): Woolmington v The Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462 at 476-477.

[290]

[18] Mellor v Denham (1880) 5 QBD 467; The Queen v Whitchurch (1881) 7 QBD 534; Ex parte Schofield [1891] 2 QB 428.

[291]

[19] (1885) 14 QBD 667.

[292]

[26] R v Hausmann (1909) 26 TLR 3.

[293]

[27] See also The King (Sherry) v The County Court Judge and Chairman of Quarter Sessions for County Fermanagh [1935] NI 211 at 235, 247-248, 251, 260.

[294]

[28] [1896] 2 QB 344.

[295]

[30] (supra) per Lord Esher MR at 347-348, per Kay LJ at 349, per AL Smith LJ at 352.

[296]

[31] Attorney-General v Casey [1930] IR 163 per Kennedy CJ at 170, per Fitzgibbon J at 174-175,

[297]

[32] [1945] IR 183.

[298]

[35] The King (Sherry) v The County Court Judge and Chairman of Quarter Sessions for County Fermanagh (supra) per Andrews LJ at 235, per Best LJ at 248-251.

[299]

[38] Mexborough (Earl of) v Whitwood Urban District Council [1897] 2 QB 111 per Lord Esher MR at 115, per A L Smith LJ at 118.

[300]

[39] [1910] HCA 61; (1910) 11 CLR 738.

[301]

[41] [1775] EngR 14; (1775) 1 Cowp 382 at 391; [1775] EngR 14; 98 ER 1142 at 1147.

[302]

[42] [1943] AC 147 at 162.

[303]

[43] [1946] 1 KB 176.

[304]

[45] Benham v The United Kingdom [1996] ECHR 22; (1996) 22 EHRR 293 at para [56]; Ashworth, A, "Is the Criminal Law a Lost Cause?" (2000) 116 Law Quarterly Review 225 at 230.

[305]

[46] (1945) 7 ATD 527.

[306]

[48] [1946] VicLawRp 51; [1946] VLR 330.

[307]

[50] [1948] VicLawRp 71; [1948] VLR 408.

[308]

[54] [1949] HCA 48; (1949) 80 CLR 198.

[309]

[57] (supra) at 208. But see also Griffith CJ in Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143 at 147-148.

[310]

[59] (1949) 4 AITR 272 at 275.

[311]

[61] McGovern v Hillman Tobacco Pty Ltd (supra) at 276.

[312]

[62] Re Curtis [1951] St R Qd 246 at 251.

[313]

[63] [1953] HCA 59; (1953) 90 CLR 336.

[314]

[66] [1958] SR (NSW) 343 at 351.

[315]

[67] [1958] HCA 60; (1958) 99 CLR 521.

[316]

[70] (1963) 36 ALJR 354.

[317]

[71] (1984) 54 ALR 128 at 152.

[318]

[72] (1964) 80 WN (NSW) 1676 at 1679.

[319]

[73] Ex parte Duffy; Re Automobile Advance Agency Co Ltd (supra).

[320]

[75] (1969) 43 ALJR 243 at 246.

[321]

[76] [1972] HCA 62; (1972) 127 CLR 396.

[322]

[79] Vehicle Builders' Employees' Federation of Australia v General Motors - Holdens Pty Ltd (1977) 32 FLR 100; Jarrad v Melbourne and Metropolitan Tramways Board [1915] ArgusLawRp 35; (1978) 21 ALR 201; Newstead Wharves and Stevedoring Co Pty Ltd v Chamberlain; Ex parte Chamberlain [1954] QSR 331.

[323]

[80] Gapes v Commercial Bank of Australia Ltd [1979] FCA 62; (1979) 38 FLR 431 at 440.

[324]

[84] [1954] 2 QB 443 at 447.

[325]

[85] [1982] HCA 76; (1982) 152 CLR 477.

[326]

[87] Customs Act 1901 s 244.

[327]

[94] (1988) 13 NSWLR 57.

[328]

[98] Murphy v KRM Holdings P/L [1985] FCA 495; (1985) 8 FCR 349.

[329]

[99] Set out in paragraph [5] of this judgment.

[330]

[101] (1986) 9 FCR 153.

[331]

[103] ALRC Report No 38 (1987): Evidence.

[332]

[106] (1988) 94 FLR 278.

[333]

[110] R (Sherry) v County Court Judge and Chairman of Quarter Sessions for County of Fermanagh (supra).

[334]

[114] There is a useful discussion of the effect of these amendments in Howell v De Boer, unreported, District Court of Queensland, Appeal No 120 of 1990, Boyce DCJ.

[335]

[115] ALRC Report No 60 (1992): Customs and Excise.

[336]

[118] Kingswell v The Queen (1985) 159 CLR 264 at 276-277.

[337]

[123] (1996) 130 FLR 383.

[338]

[127] Comptroller-General of Customs v D'Aquino Bros Pty Ltd (supra) at 395.

[339]

[128] Hinch v Attorney-General (Vict) [1987] HCA 56; (1987) 164 CLR 15.

[340]

[131] (1995) 183 CLR 525.

[341]

[134] (supra) at 545 per McHugh J; see also Re Bramblevale Ltd [1970] Ch 128 at 137; Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67; Bartrum v Healeswood [1973] FSR 585; Kent County Council v Batchelor (1976) 75 LGR 151; Re C (A Minor) (Wardship: Contempt) [1986] 1 FLR 578; Dean v Dean [1987] FCR (UK) 96.

[342]

[136] Acts Interpretation Act 1901 (Cth) s 15AB.

[343]

[137] Evidence Act ss 125, 128, 130, 131.

[344]

[138] NSWSC No 12134 of 1992, 11 February 1997.

[345]

[140] Comptroller-General of Customs v Kingswood Distillery Pty Ltd (supra) at 5-6.

[346]

[142] Comptroller-General of Customs v Kingswood Distillery Pty Ltd (supra) at 11.

[347]

[146] NSWSC No 12178 of 1989, 29 April 1998.

[348]

[150] NSWSC No 12178 of 1989, 10 July 1998 at [36].

[349]

[151] Wong v Kelly [1999] NSWCA 439.

[350]

[152] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492.

[351]

[153] [2000] QCA 186; CA No 1260 of 2000, 22 May 2000.

[352]

[156] Penalties and Sentences Act 1992 (Qld) s 185.

[353]

[157] Fines Act 1996 (NSW) 558.

[354]

[158] cf R v Booth QCA No 229 of 1997, 22 August 1997.

[355]

[159] Supreme Court Act 1995 ss 89-97.

[356]

[160] Evidence Act 1977 s 8.

[357]

[161] Evidence Act 1977 s 8.

[358]

[162] There being no equivalent in the Excise Act of s 236 of the Customs Act.

[359]

[163] Walsh v Sainsbury [1925] HCA 28; (1925) 36 CLR 464; R v Crossley (1948) SR (NSW) 494; Mallan v Lee (supra); R v Lewis (1985) 18 A Crim R 243.

[360]

[164] Brown v The King [1913] HCA 70; (1913) 17 CLR 570 at 595; Lawrence v The King [1933] AC 699 at 707; Woolmington v The Director of Public Prosecutions (supra) at 481; Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584.

[361]

[165] (supra) at 362; cf Neat Holdings P/L v Karajan Holdings P/L [1992] HCA 66; (1992) 67 ALJR 170.

[362]

[166] Constitution s 80; Kingswell v The Queen (supra).

[363]

[167] see Judiciary Act 1903 s 68.

[364]

[168] For example, Pollock CB, Parker B, Cotton and Lindley LLJ, Murnaghan, Black and Megaw JJ, Latham CJ, Stanley, Kitto, Owen, Pincus, Hunt, Byrne, and Sully JJ and Kirby P.

[365]

[169] Briginshaw v Briginshaw (supra).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (365 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (35)