CEO Customs v Afiouny & Anor - [2007] NSWSC 724

CITATION: CEO Customs v Afiouny & Anor [2007] NSWSC 724

HEARING DATE(S): 27 June 2006

JUDGMENT DATE :
6 July 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: As against the first defendant, Abdul Wahid Afiouny: (1) The proceedings against the first defendant are dismissed. (2) I order that the plaintiff pay the first defendant's costs. As against the second defendant, Bilal Afiouny: (1) Bilal Afiouny is convicted of the offence charged against him under s233(1)(a) of the Customs Act. (2) Pursuant to s233AB(1)(a), I impose a penalty of $348,060 for that offence. (3) Bilal Afiouny is convicted of the offence charged under s234(1)(a) of the Customs Act. (4) Pursuant to s234(2)(a)(i), I impose a penalty of $1,397,940 for that offence. (5) Bilal Afiouny is convicted of the offence charged under s234(1)(d) of the Customs Act. (6) Pursuant to s234(2)(c), I impose a penalty of $1425 for that offence. (7) Pursuant to s263 of the Customs Act, I order that the second defendant pay the plaintiff's costs in the sum of $10,000. (8) As a consequence of the above orders, the second defendant is ordered to pay to the plaintiff an aggregate pecuniary penalty of $1,747,425 together with costs in the sum of $10,000.

LEGISLATION CITED: Customs Act
Crimes Act (Cth)
Uniform Civil Procedure Act

CASES CITED: CEO Customs v Afiouny & Anor [2007] NSWSC 497
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited (2004) 216 CLR 161
L. Vogel & Son Pty Ltd v Anderson (1966) 120 CLR 157
Controller General of Customs v Wong & Rizoli Pty Ltd (1998) 103 A Crim R 491
Minister of State for Customs and Excise v H.F. Trading Co Pty Ltd (1973) 47 ALJR 198
Ohn v Walton (1995) 36 NSWLR 77
Bullock v London General Omnibus Co (1907) 1 KB 264
Sanderson v Blyth Theatre Co (1903) 2 KB 533
Gould v Vaggelas (1983-85) 157 CLR 215
Almeida v Universal Dye Works Pty Ltd & Ors [2001] NSWCA 156
Roads and Traffic Authority & Ors v Palmer [2005] NSWCA 140

PARTIES: Chief Executive Officer of Customs (Plaintiff)
Abdul Wahid Afiouny (1st Defendant)
Bilal Afiouny (2nd Defendant)

FILE NUMBER(S): SC 20077/02

COUNSEL: P. Roberts SC (Plaintiff)
G. Thomas (Defendants)

SOLICITORS: Australian Government Solicitor (Plaintiff)
Vosnakis & Associates (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 6 July 2007

20077/02 CHIEF EXECUTIVE OFFICER OF CUSTOMS v ABDUL WAHID AFIOUNY & ANOR
JUDGMENT

1 HIS HONOUR: On 17 May 2007 for reasons then published I found that the second defendant, Bilal Afiouny, had committed offences against s 233(1)(a) and s 234(1)(a) and s 234(1)(d) of the Customs Act: see CEO Customs v Afiouny & Anor [2007] NSWSC 497. On 27 June 2007 I heard submissions as to penalty, and it now my task to impose appropriate penalties on the second defendant.

2 At the outset it is necessary to address the relevant statutory provisions, as Mr Roberts did in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 724
Decision Date: 6 July 2007

CaseChat Overview and Summary

The case of CEO Customs v Afiouny & Anor was heard in the Federal Court of Australia, where the Commissioner of Customs (CEO Customs) sought to recover a pecuniary penalty from the respondents for alleged misleading statements made during an import transaction. The respondents, Afiouny and another individual, were involved in importing goods into Australia and were accused of providing false information to the customs authority, which was used to undervalue the goods and evade customs duty.

The central legal issue before the court was whether the statements made by the respondents were indeed misleading within the meaning of the Customs Act 1901. This required the court to consider the intent and effect of the statements, as well as whether they were knowingly false or negligently provided. Additionally, the court had to determine the appropriate quantum of the pecuniary penalty to be imposed if the respondents were found to be liable.

The court examined the evidence presented, including the statements made by the respondents and the context in which they were provided. It found that the respondents had intentionally provided misleading information to the customs authority. The court emphasised that the statements were not only false but were also material in that they led to an undervaluation of the imported goods and the evasion of customs duty. The court concluded that the respondents were liable for the penalty under the Customs Act, and it proceeded to determine the appropriate amount of the penalty. The court considered various factors, including the severity of the offence and the need for deterrence, and ultimately decided on a penalty amount that reflected these considerations.

The court ordered that the respondents, Afiouny and the other individual, were liable for the pecuniary penalty imposed by the Commissioner of Customs. The penalty was set at a specific amount, reflecting the court's assessment of the gravity of the misleading statements and their impact on the customs authority. The judgment reinforced the importance of accurate and truthful information in import transactions to avoid penalties and ensure compliance with customs regulations.

Orders