CEO of Customs v Au - [2005] NSWCA 119

Reported Decision:
153 A Crim R 21

Court of Appeal

CITATION:
CEO of Customs v Au [2005] NSWCA 119

HEARING DATE(S):
7 April 2005

JUDGMENT DATE:

21 April 2005

JUDGMENT OF:
Sheller JA at 1; Tobias JA at 2; Brownie AJA at 45

DECISION:
(1) Grant leave to appeal; (2) Appeal allowed; (3) Set aside the orders made by Shaw J on 16 and 17 September 2004; (4) There be judgment for the claimant on the separate issue the subject of paragraph 2 of the claimant's Reply dated 3 October 2003; (5) The claimant's Notice of Motion filed on 9 October 2003 for leave to amend its Statement of Claim be dismissed; (6) The opponent to pay the claimant's costs of the Notice of Motion filed on 9 October 2003, the proceedings before Shaw J, summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS:
PROCEDURE - Double jeopardy - Autrefois acquit - Res judicata - Opponent charged with offences under Customs Act 1901 - Charges withdrawn before opponent called upon to plead - Charges recorded by Magistrate as "Withdrawn, dismissed" - No judicial determination of charges on merits - Proceedings subsequently instituted by way of statement of claim alleging same offences subject of original charges - Whether doctrine of autrefois acquit precluded subsequent proceedings - Justices Act 1902 s 80

LEGISLATION CITED:
Customs Act 1901 (Cth)
Justices Act 1902
Family Law Act 1975

CASES CITED:
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited (2003) 216 CLR 161
R v Phipps; Ex parte Alton [1964] 2 QB 420
Lawson v Wallace [1968] 3 NSWR 82
R v Galvin (No 2) [1961] VR 740
Broome v Chenoweth (1946) 73 CLR 583
The Queen v Reynhoudt (1962) 107 CLR 381
Barnes v Gougousis [1969] VR 1019
Callahan v Broomham (1996) 68 IR 66
Zaravinos v Houvardas [2004] NSWCA 421

PARTIES:
Chief Executive Officer of Customs
John Martins Au

FILE NUMBER(S):
CA 41207/04

COUNSEL:
A: R Horsley
R: J Overall

SOLICITORS:
A: Australian Government Solicitor, Sydney
R: Lloyd Truman Sadiq, Sydney

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 40887/04

LOWER COURT JUDICIAL OFFICER:
Shaw J

CA 41207/04
SC 40887/04

SHELLER JA
TOBIAS JA
BROWNIE A-JA
Thursday 21 April 2005

CHIEF EXECUTIVE OFFICER OF CUSTOMS v AU

Judgment

1 SHELLER JA: I agree with Tobias JA.

2 TOBIAS JA: The claimant seeks the leave of this Court to appeal against an order made by Shaw J on 16 September 2004 dismissing its statement of claim filed in the Common Law Division of the Supreme Court on 26 April 2002. The statement of claim charged the opponent with offences under s 233(1)(a), s 234(1)(a) and s 234(1)(d)(i) of the Customs Act 1901 (Cth) (the Act).

3 The claimant sought the opponent's conviction in respect of each of those offences and an order that he…

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: [2005] NSWCA 119
Decision Date: 21 April 2005

CaseChat Overview and Summary

The Chief Executive Officer of Customs (the appellant) sought to appeal a decision of the Supreme Court of New South Wales. The appeal concerned the application of the doctrine of *autrefois acquit* to subsequent proceedings instituted by the appellant against a Mr Au (the respondent) under the *Customs Act 1901* (Cth).

The central legal issue before the Court of Appeal was whether the doctrine of *autrefois acquit*, which prevents an individual from being tried for an offence of which they have already been acquitted, precluded the appellant from instituting subsequent proceedings against the respondent. This question arose because earlier charges laid against the respondent under the *Customs Act* had been withdrawn by the prosecution before the respondent was called upon to plead, and the Magistrate had recorded these withdrawals as "Withdrawn, dismissed".

The Court of Appeal held that the doctrine of *autrefois acquit* did not apply in these circumstances. Their Honours reasoned that for the doctrine to operate, there must have been a prior judicial determination of the charges on their merits. As the charges against the respondent were withdrawn before any plea was entered and without any consideration of the evidence, there had been no acquittal in the legal sense. Consequently, the subsequent proceedings were not barred by the principle of double jeopardy.

Orders

Orders of the court

" the following:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	CEO of Customs v Au [2005] NSWCA 119
HEARING DATE(S):	7 April 2005
JUDGMENT DATE:	21 April 2005
JUDGMENT OF:	Sheller JA at 1; Tobias JA at 2; Brownie AJA at 45
DECISION:	(1) Grant leave to appeal; (2) Appeal allowed; (3) Set aside the orders made by Shaw J on 16 and 17 September 2004; (4) There be judgment for the claimant on the separate issue the subject of paragraph 2 of the claimant's Reply dated 3 October 2003; (5) The claimant's Notice of Motion filed on 9 October 2003 for leave to amend its Statement of Claim be dismissed; (6) The opponent to pay the claimant's costs of the Notice of Motion filed on 9 October 2003, the proceedings before Shaw J, summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS:	PROCEDURE - Double jeopardy - Autrefois acquit - Res judicata - Opponent charged with offences under Customs Act 1901 - Charges withdrawn before opponent called upon to plead - Charges recorded by Magistrate as "Withdrawn, dismissed" - No judicial determination of charges on merits - Proceedings subsequently instituted by way of statement of claim alleging same offences subject of original charges - Whether doctrine of autrefois acquit precluded subsequent proceedings - Justices Act 1902 s 80
LEGISLATION CITED:	Customs Act 1901 (Cth) Justices Act 1902 Family Law Act 1975
CASES CITED:	Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited (2003) 216 CLR 161 R v Phipps; Ex parte Alton [1964] 2 QB 420 Lawson v Wallace [1968] 3 NSWR 82 R v Galvin (No 2) [1961] VR 740 Broome v Chenoweth (1946) 73 CLR 583 The Queen v Reynhoudt (1962) 107 CLR 381 Barnes v Gougousis [1969] VR 1019 Callahan v Broomham (1996) 68 IR 66 Zaravinos v Houvardas [2004] NSWCA 421
PARTIES:	Chief Executive Officer of Customs John Martins Au
FILE NUMBER(S):	CA 41207/04
COUNSEL:	A: R Horsley R: J Overall
SOLICITORS:	A: Australian Government Solicitor, Sydney R: Lloyd Truman Sadiq, Sydney

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 40887/04
LOWER COURT JUDICIAL OFFICER:	Shaw J