Citation: CEO of Customs v Delacour [2006] NSWDC 196
Court: NSW District Court
Date: 18 April 2006
Judge(s): Donovan QC DCJ
Background
The Chief Executive Officer of Customs (the appellant) brought four prosecutions against a respondent in the Local Court for offences under the Customs Act 1901. The respondent pleaded guilty to all four matters. Rather than recording a conviction, the Magistrate exercised powers under s 19B of the Crimes Act (Cth) and discharged the respondent on a recognisance, without proceeding to conviction.
The appellant considered this outcome too lenient and sought to appeal against it to the District Court. The appellant relied on s 248 of the Customs Act 1901, read together with s 23 of the Crimes (Local Courts Appeal and Review) Act 2001, as the basis for the appeal.
Legal Issues
- Whether s 248 of the Customs Act 1901 authorised an appeal against a sentence or penalty imposed in a Customs prosecution
- Whether a discharge under s 19B of the Crimes Act (Cth) fell within the types of orders against which s 248 permitted an appeal
- Whether s 23 of the Crimes (Local Courts Appeal and Review) Act 2001 conferred on the CEO of Customs (as distinct from a Director of Public Prosecutions) the right to appeal against a sentence imposed in summary proceedings
Decision
Donovan QC DCJ held that s 248 of the Customs Act 1901, properly construed, did not provide for an appeal against a sentence or penalty. The section referred to appeals from "any conviction, order for condemnation or order of dismissal," and that language did not extend to sentences, penalties, or a discharge under s 19B. The appellant's argument that "dismissal" in s 248 should be read to include a s 19B discharge was not accepted, particularly given the absence of any reference to sentence or penalty in the provision.
Even if s 248 could be read to apply the state's appellate machinery to sentence appeals, s 23(1) of the Crimes (Local Courts Appeal and Review) Act 2001 granted that right only to the Director of Public Prosecutions, whether state or Commonwealth. The proceedings before the Local Court had been brought by the CEO of Customs, an official of a different character, and that office fell outside the scope of s 23(1).
The Court also noted that s 23(2), which applies to prosecutors more broadly, only permits a prosecutor to appeal against a costs order made against that prosecutor. A discharge under s 19B is an order made against the defendant, not against the prosecutor, and so s 23(2) provided no assistance to the appellant.
Taken together, these conclusions meant the District Court had no jurisdiction to hear the appeal. The appeal was accordingly dismissed as incompetent.
Orders Made
- The appeal was dismissed as incompetent.
- Costs were refused.
Key Takeaways
- Section 248 of the Customs Act 1901 does not, on its face, authorise an appeal against sentence or penalty; it is confined to convictions, orders for condemnation, and orders of dismissal.
- A discharge under s 19B of the Crimes Act (Cth) does not constitute an "order of dismissal" within the meaning of s 248, and so does not attract any right of appeal under that provision.
- Under s 23(1) of the Crimes (Local Courts Appeal and Review) Act 2001, the right to appeal against a sentence imposed in summary proceedings is available only to a Director of Public Prosecutions (state or Commonwealth), not to other prosecutorial bodies such as the CEO of Customs.
- Section 23(2) extends appeal rights to prosecutors more broadly, but only in respect of costs orders made against the prosecutor, not against orders made in respect of a defendant.
- In dismissing the appeal, the District Court confirmed that a prosecutorial body lacking a statutory right of appeal cannot invoke the court's jurisdiction, rendering any such appeal incompetent rather than merely unsuccessful.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 248
- Crimes Act 1914 (Cth), s 19B
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 11, 23(1), 23(2)
Cases: No cases were cited in the provided judgment text.