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Court of Criminal Appeal 11 February 2008

PELLEGRINO v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

[2008] NSWCCA 17

Theft & property
CRIMINAL LAW THEFT CRIMINAL CODE (CTH) S 131 CUSTOMS GOODS SUBJECT TO THE CONTROL OF CUSTOMS FORFEITURE OF GOODS

Citation: Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 11 February 2008
Judge(s): Basten JA; Hidden J; Barr J

Background

A shipping container was unloaded at a wharf operated by Patrick Stevedores Operations Pty Ltd at Port Botany on 4 February 2006. The container had been reported to Customs as containing PVC electrical tape, but in fact held 750 boxes of cigarettes. No import declaration had been made and no duty had been paid.

Two days later, the container was moved from the wharf without Customs' permission and was subsequently seized by police. The appellant and two co-accused were charged with dishonest appropriation of property belonging to a Commonwealth entity, namely the Australian Customs Service, under s 131.1 of the Criminal Code Act 1995 (Cth).

The appellant sought a permanent stay of the primary charge in the District Court, arguing that the prosecution could not establish the element that the property "belonged to" Customs. The trial judge, Sorby DCJ, dismissed the motion. The appellant then appealed to the Court of Criminal Appeal, having been granted a certificate by the trial judge under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the District Court, sitting in federal jurisdiction, could grant an interlocutory certificate under s 5F of the Criminal Appeal Act 1912 (NSW), and in what circumstances such a certificate is appropriately issued.
  • Whether goods physically held by a third party (a stevedoring company) could nevertheless be property "subject to the control of Customs" for the purposes of the Customs Act 1901 (Cth).
  • Whether that statutory form of Customs control was capable of satisfying the Criminal Code's definition of property "belonging to another," specifically to a Commonwealth entity.
  • Whether, on the agreed facts, the prosecution could not possibly establish the relevant element of the offence, thereby warranting a permanent stay.

Decision

Jurisdiction and the s 5F certificate: The Court confirmed that a trial judge may grant an interlocutory appeal certificate under s 5F of the Criminal Appeal Act 1912 (NSW) in federal jurisdiction proceedings, by operation of s 68(2) of the Judiciary Act 1903 (Cth). The power to issue such a certificate is properly exercised where the appropriateness of an interlocutory appeal is not in doubt, or where the trial judge has particular insight into the proceedings that may not be readily apparent to an appellate court.

Customs control despite third-party physical possession: The Court held that goods can be in the possession or custody of another person while remaining subject to the control of Customs. The Customs Act operates automatically to render goods effectively immovable and unusable without Customs' express authority, once those goods fall within the relevant statutory classifications. In a practical sense, Customs exercised actual physical control over the container's contents through the appointed wharf operator and by deliberately withholding authority to move the goods.

Property "belonging to" Customs: The Court accepted that the Customs Act's description of goods as "subject to the control of the Customs" was not, on its own, sufficient to vest the degree of control required by the Criminal Code's definition of "belonging to another." However, the agreed facts went considerably further than mere statutory classification. Those facts included Customs' awareness of the container, the absence of any declaration or duty payment, and a positive step taken by Customs to record that there was no authority to release the goods. Taken together, it was open to a jury to conclude that Customs held the legally relevant degree of control at the time the goods were removed.

Outcome on the stay application: The appellant had agreed to place those facts before the trial judge for the purposes of the stay application. Having done so, the appellant could not demonstrate that the prosecution must inevitably fail. The agreed facts did not establish that the prosecution could not prove the belonging element, and accordingly the trial judge was correct to dismiss the application for a permanent stay. The appeal was dismissed unanimously.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 68(2) of the Judiciary Act 1903 (Cth), State appeal legislation, including s 5F of the Criminal Appeal Act 1912 (NSW), applies in proceedings where a State court is exercising federal jurisdiction, making interlocutory appeals available in that context.
  • A certificate under s 5F is appropriately issued where the need for an interlocutory appeal is clear or where the trial judge possesses particular procedural insight into the proceedings.
  • Customs control under the Customs Act 1901 (Cth) is not dependent on physical possession: the statutory regime renders dutiable goods effectively immovable without Customs' authority, and that regime can, in combination with specific factual circumstances, satisfy the Criminal Code's requirement that property "belongs to another."
  • In dismissing the stay application, the Court of Criminal Appeal confirmed that a permanent stay requires the applicant to demonstrate that the prosecution cannot possibly succeed on the agreed facts; it is not enough to show that one legal analysis might favour the defence if other permissible inferences remain available.
  • The agreed facts in a stay application can themselves become available to the prosecution at trial, and an applicant who puts agreed facts before the court on a stay motion cannot readily argue that those same facts would be unavailable to the Crown before the jury.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 130, 131
- Customs Act 1901 (Cth), ss 4, 15, 20, 30, 33, 35A, 42, 64, 68, 71A, 118, 153, 183UA, 193G, 197, 204, 205G, 229
- Criminal Appeal Act 1912 (NSW), s 5F
- Judiciary Act 1903 (Cth), ss 2, 35A, 68
- Customs Regulations 1926 (Cth), reg 3, Form 68
- Business Franchise Licences (Tobacco) Act 1987 (NSW), s 58
- Excise Act 1901 (Cth), s 60
- Family Law Act 1975 (Cth), s 95
- Navigation Act 1912 (Cth), s 329
- Fauna Conservation Act 1974 (Qld), s 7
- Theft Act 1968 (UK), s 5

Cases:
- DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
- Collector of Customs (Vic) v Wilh Wilhelmsen Agency Pty Ltd (1956) 102 CLR 147
- Collector of Customs (NSW) v Southern Shipping Co Ltd (1962) 107 CLR 279
- Kitano v The Commonwealth (1973) 129 CLR 151
- Burton v Honan (1952) 86 CLR 169
- Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429
- Yanner v Eaton [1999] HCA 69; (1999) 201 CLR 351
- Goben Pty Ltd v Chief Executive Officer of Customs (1996) 65 FCR 180; (1996) 68 FCR 301; (1997) 74 FCR 36
- The Queen v Gee (2003) 212 CLR 230
- Walden v Hensler (1987) 163 CLR 561
- Commonwealth v District Court of the Metropolitan District (1954) 90 CLR 13
- Victoria v The Commonwealth (1937) 58 CLR 618 ("The Kakariki")
- R v Woodman [1974] 2 All ER 955
- Feely [1973] QB 530
- Ghosh [1982] 3 WLR 110
- Hedberg v Woodhall (1913) 15 CLR 531