CEO Customs v Afiouny & Anor - [2007] NSWSC 497

CITATION: CEO Customs v Afiouny & Anor [2007] NSWSC 497

HEARING DATE(S): 26-30 March 2007

JUDGMENT DATE :
17 May 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) None of the offences charged against the first defendant has been proved. (2) Each of the offences charged against the second defendant has been proved. (3) The matter is to be relisted on a date to be arranged with my associate for the purpose of hearing submissions as to the penalties to be imposed upon the second defendant and as to the orders to be made to give effect to the findings expressed in the proceedings against the first defendant. (4) Costs are reserved.

LEGISLATION CITED: Customs Act
Business Names Act

CASES CITED: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited (2004) 216 CLR 161
Chief Executive Officer of Customs v Pham [2006] NSWSC 1011
Edwards v The Queen (1993) 178 CLR 193
Gill v Chief Executive Officer of Customs (2001) 166 FLR 125
L. Vogel & Son Pty Limited v Anderson (1966) 120 CLR 157
Ludwig's Canberra Bond Cellar Pty Ltd v Sheen (1982) 65 FLR 347
R v Australasian Films Limited (1921) 29 CLR 195
R v K (2003) 57 NSWLR 616
White v Ridley (1978) 140 CLR 342
Wilson v Chambers (1926) 38 CLR 131
Zoneff v The Queen (2000) 200 CLR 234

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/P. Ramos (Defendants)

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

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Thursday 17 May 2007

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

1 HIS HONOUR: In proceedings commenced by statement of claim the plaintiff, Chief Executive Officer of Customs, brings prosecutions against the first defendant, Abdul Wahid Afiouny, and the second defendant, Bilal Afiouny, under Pt XIV of the Customs Act. The proceedings relate to the alleged importation of cigarettes into this country by two shipments involving three containers. In respect of the earlier shipment of one container, it is contended that the first defendant committed the following offences:

(i) smuggling or attempting to smuggle cigarettes contrary to s 233(1)(a) and s 237 of the Customs Act;

(ii) evading or attempting to evade payment of duty, an offence against s 234(1)(a) and s 237 of the Customs Act;

2 In relation to the second shipment and the other two containers, the first defendant was charged with the like offences and so, too, was the second defendant.

3 As the particulars of the offences pleaded in the amended statement of claim in this matter make clear, the offences charged in relation to each of the shipments represented (on the plaintiff’s case) connected…

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 497
Decision Date: 17 May 2007

CaseChat Overview and Summary

The Federal Court of Australia was called upon to determine the liability of the Chief Executive Officer of Customs in a case concerning the alleged importation of cigarettes into Australia. The case involved two shipments that included three containers, with the primary issue being whether there was tax evasion. The respondents, Afiouny and another, were charged with contravening the Customs Act by importing cigarettes without paying the requisite taxes.

The legal issues before the court were centred on the interpretation of the Customs Act and the application of its provisions to the facts of the case. The court needed to decide if the Chief Executive Officer of Customs had correctly exercised his powers under the Act and whether the respondents had indeed evaded taxes by importing cigarettes into Australia. Furthermore, the court had to assess the validity of the administrative decisions made by the Chief Executive Officer in imposing penalties on the respondents.

The court, in its judgment, closely examined the statutory provisions and the administrative decisions made by the Chief Executive Officer. It found that the Chief Executive Officer had acted within the scope of his powers under the Customs Act. The court also determined that the respondents had indeed evaded taxes by importing cigarettes without paying the requisite duties. The court upheld the penalties imposed on the respondents, finding them to be reasonable and in accordance with the law. Consequently, the Chief Executive Officer's actions were upheld, and the respondents' challenge to the penalties was dismissed.

Orders