Citation: Gill & Anor v The Chief Executive Officer of Customs [2001] NSWCCA 470
Court: NSW Court of Criminal Appeal
Date: 4 December 2001
Judge(s): Giles JA; Howie J; Carruthers AJ
Background
Two individuals were charged with multiple offences under the Customs Act 1901 (Cth) in connection with the importation of two European motor vehicles in November 1992. One appellant imported a BMW 320i and the other imported a Mercedes Benz 230CE. The charges alleged that both vehicles had been imported with understated customs values, with the result that less duty was payable than should have been.
The charges included smuggling goods (importing with intent to defraud the revenue), evading payment of duty, attempting to evade payment of duty, and making false statements to customs officers. Both appellants were also charged as accessories to each other's alleged offences.
After conviction before a Magistrate and then on appeal in the District Court, the appellants sought to have a question of law submitted to the Court of Criminal Appeal. That question was whether the prosecution was required to prove the customs value of the imported goods as determined under the relevant division of the Customs Act, and whether it had done so. The answer to that question turned on which specific offence was under consideration.
Legal Issues
- Whether the prosecution was required to prove the customs value of the imported goods (calculated under Div 2 of Pt VIII of the Customs Act) in order to establish the offence of smuggling goods.
- Whether proof of customs value was required for the offences of evading payment of duty, attempting to evade payment of duty, and making a false statement to a customs officer.
- Whether the same question applied equally to the corresponding accessory charges under s 236 of the Customs Act.
Decision
The Court of Criminal Appeal, in reasons delivered by Giles JA (with Howie J and Carruthers AJ agreeing), drew a clear distinction between the offence of smuggling goods and the other customs offences charged.
For the smuggling offence under s 233(1)(a), the court held that the prosecution did not need to prove the customs value of the motor vehicles as determined under the Act. The offence of smuggling is defined as importation with intent to defraud the revenue, and proof of that intent does not require establishment of a specific statutory customs value. The corresponding accessory charges under s 236 attracted the same conclusion.
For the offences of evading payment of duty, attempting to evade payment of duty, and making a false statement, the court reached the opposite conclusion. The prosecution was required to prove the customs values for those charges. This was because those offences were directly framed by reference to duty payable or statements about customs value, making proof of the correct statutory customs value an essential element.
Giles JA cautioned against treating all three offences together, observing that doing so risks confusion because customs value plays a different role in each. The court declined to answer the submitted question with a single yes or no, and instead gave a differentiated answer corresponding to each category of offence.
Orders Made
- The question of law was determined no in respect of the charges of smuggling goods and the cognate accessory charges (meaning proof of customs value was not required for those charges).
- The question of law was determined yes in respect of the charges of evading payment of duty, attempting to evade payment of duty, making false statements, and the cognate accessory charges (meaning proof of customs value was required for those charges).
- The proceedings were remitted to the District Court for further consideration in accordance with the determination.
- No order was made as to the costs of the proceedings in the Court of Criminal Appeal.
Key Takeaways
- The Court of Criminal Appeal confirmed that the offence of smuggling goods under s 233(1)(a) of the Customs Act 1901 (Cth) does not require proof of customs value as calculated under Div 2 of Pt VIII. The gravamen of that offence is the intent to defraud the revenue, not the quantification of any specific duty liability.
- A conviction for evading payment of duty or making a false statement to a customs officer does require the prosecution to establish the customs value of the goods as determined under the Act. Those offences are inherently linked to the quantification of duty or the accuracy of value declarations.
- Accessory liability under s 236 follows the same proof requirements as the corresponding principal offence, so the distinction between offence categories carries through to charges brought against accessories.
- Addressing multiple customs offences together, without distinguishing between them, risks analytical error. The court's reasoning emphasises that the role of customs value differs across the offences, and each must be assessed on its own terms.
- Where a stated case produces partial success and partial failure on a question of law, it may be appropriate to make no costs order in the Court of Criminal Appeal, as occurred here.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), ss 4(1), 233(1)(a), 233(1AA), 233AB(1), 234(1)(a), 234(1)(d)(i), 234(2), 236, 237, 255(1), 255(4), Div 2 of Pt VIII
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes Act 1914 (Cth), s 19B
- Justices Act 1902 (NSW), s 122
Cases Cited:
- Barendse v Comptroller-General of Customs (1996) 136 FLR 243
- Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86
- Cendak v Crawford (1986) 86 FLR 190
- Gallagher v Cendak (1988) VR 731
- Hansen v Comptroller-General of Customs (1996) 130 FLR 72
- Minister for Immigration, Local Government and Ethnic Affairs v Della Cruz (1992) 34 FCR 348
- R v Australian Films Ltd (1921) 29 CLR 195
- R v Maiden (2000) NSWCCA 519
- Scott v Metropolitan Police Commissioners [1975] AC 819
- Spies v The Queen (2000) 201 CLR 603
- Stephens v Abrahams (1902) 27 VR 753