Citation: CEO of Customs v Pham & Anor [2003] NSWSC 971
Court: Supreme Court of New South Wales, Common Law Division
Date: 21 October 2003
Judge(s): Greg James J
Background
The Chief Executive Officer of Customs commenced civil proceedings by statement of claim against the defendants, seeking pecuniary penalties for alleged breaches of the Customs Act 1901 (Cth). The potential penalties were significant, totalling as much as $7 million under Part XIV of the Act.
The defendants sought to have certain preliminary questions determined before any trial. Central to their application was the argument that the nature of the allegations against them, which involved offences against laws of the Commonwealth, entitled them to a trial by jury under s 80 of the Constitution. The defendants had previously attempted to have the proceedings removed to the High Court to resolve the constitutional questions, but that application was refused.
Before Greg James J, the matter proceeded on the basis of an application to strike out the statement of claim, on the grounds that the proceedings were required by the Constitution to have been commenced by indictment, thereby attracting the jury trial guarantee in s 80. In the alternative, the defendants argued that a jury trial should be ordered as a matter of discretion under the applicable New South Wales legislation.
Legal Issues
- Whether proceedings to recover pecuniary penalties under the Customs Act 1901 (Cth) constituted offences against laws of the Commonwealth that were required to be commenced by indictment
- Whether s 80 of the Constitution, which guarantees jury trial on indictment of Commonwealth offences, applied to require a jury trial in these civil penalty proceedings
- Whether ss 245 and 247 of the Customs Act were constitutionally invalid as inconsistent with s 80 of the Constitution
- Whether a jury trial should be ordered as a matter of discretion under New South Wales legislation, including the Supreme Court Act 1970 and the Jury Act 1977
Decision
Greg James J dismissed all grounds pressed by the defendants. The central constitutional argument turned on the proper interpretation of s 80 of the Constitution, which provides that the trial on indictment of Commonwealth offences shall be by jury. His Honour acknowledged that the breaches alleged under the Customs Act did constitute offences against laws of the Commonwealth, consistent with the High Court's recent decision in CEO of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49.
However, his Honour held that he was bound by the established majority position in the High Court: s 80 is only engaged if the legislature has prescribed that a proceeding be conducted by indictment. Where Parliament has chosen a different mode of commencement, no constitutional requirement for a jury trial arises. His Honour noted that the minority views in Lowenstein and the dissent of Deane J in Kingswell, which suggested Parliament could not avoid s 80 by prescribing an alternative procedure for serious offences, did not represent the majority position and were therefore not binding.
Part XIV of the Customs Act, and specifically ss 245 and 247, provided for recovery of pecuniary penalties by "action, information or other appropriate proceeding" in civil courts, conducted in accordance with civil practice and procedure. Because the proceedings were not required to be brought by indictment, the s 80 guarantee was not triggered, and the statement of claim was not incompetent on constitutional grounds.
The discretionary arguments for a jury trial under New South Wales legislation were also rejected. The defendants were ordered to pay the plaintiff's costs of the motion, with his Honour finding the plaintiff had achieved complete success on all issues that were live before the court that day.
Orders Made
- The defendants' notice of motion was dismissed
- The defendants were ordered to pay the plaintiff's costs of the motion
- The proceedings were stood over to the status conference list on 2 December 2003
Key Takeaways
- Section 80 of the Constitution operates as a conditional guarantee: it requires a jury trial only where Parliament has prescribed that a Commonwealth offence be tried on indictment. Where Parliament prescribes a civil or alternative procedure, s 80 is not engaged.
- Proceedings under Part XIV of the Customs Act 1901 (Cth) to recover pecuniary penalties are civil proceedings commenced by statement of claim, not criminal proceedings required to be brought by indictment.
- The minority view, associated with Dixon and Evatt JJ in Lowenstein and Deane J in Kingswell, that Parliament cannot avoid s 80 by prescribing a non-indictment procedure for serious offences, remains a minority position and does not bind courts of first instance.
- Confirmation in Labrador Liquor that customs penalty breaches constitute "offences against laws of the Commonwealth" did not, of itself, require those proceedings to be tried by jury, because the mode of commencement remained non-indictment.
- Under the Customs Act, the usual rule that the Crown does not seek or recover costs in criminal proceedings is displaced: s 263 of the Act expressly empowers a court to award costs against a party in a customs prosecution.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), including ss 245, 247, 263 and Part XIV
- Judiciary Act 1903 (Cth), including s 69 and s 78B
- Supreme Court Act 1970 (NSW)
- Courts Legislation Amendment (Civil Juries) Act 2001 (NSW)
- Evidence Act 1995 (NSW)
- Jury Act 1977 (NSW)
- Constitution of Australia, s 80
Cases:
- CEO of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49
- The Queen v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556
- Kingswell v The Queen (1985) 159 CLR 264
- Re Colina; ex parte Torney (1999) 200 CLR 386
- Comptroller-General of Customs v D'Aquino Brothers Pty Ltd (1996) 135 ALR 649
- Evans v Lynch [1984] 3 NSWLR 567