CEO of Customs v Australian Petroleum Supplies Pty Ltd

[2002] VSC 223

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7634 of 1998

THE CHIEF EXECUTIVE OFFICER OF CUSTOMS	Plaintiff
v.
AUSTRALIAN PETROLEUM SUPPLIES PTY. LTD. AND OTHERS	Defendants

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 JUNE 2002
DATE OF JUDGMENT:	12 JUNE 2002
CASE MAY BE CITED AS:	THE CHIEF EXECUTIVE OFFICER OF CUSTOMS v. AUSTRALIAN PETROLEUM SUPPLIES PTY. LTD. & ORS.
MEDIUM NEUTRAL CITATION:	[2002] VSC 223

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CATCHWORDS:      Customs and Excise – Penal provisions of Customs Act – Procedure – Statements of evidence to be called by defendants – Self-incrimination.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Walters SC and Mr S. Livermore	Australian Government Solicitor
For the Defendants	Mr T. Murphy	Blake Dawson Waldron

HIS HONOUR:

1. On 20 October 1988 the Chief Executive Officer of Customs filed a writ in the Court naming as defendants Australian Petroleum Supplies Pty. Ltd. (Australian Petroleum), G.V. Liquid Tankers Pty. Ltd. (G.V. Liquid Tankers), RPM Commodities Pty. Ltd. (RPM), Kelvin Sidebottom and Raymond Sidebottom.

1. Australian Petroleum is a distributor of petroleum products operating a depot in Numurkah.  RPM is the registered owner of the land on which the depot is located and has leased the depot to Australian Petroleum.  G.V. Liquid Tankers is the operator of tankers used to transport diesel fuel and other petroleum products purchased or sold by Australian Petroleum.  Kelvin Sidebottom is a director of Australian Petroleum and Raymond Sidebottom is associated with the three companies.

1. The Chief Executive Officer alleges that between July 1996 and January 1997 the defendants manufactured excisable goods in contravention of s.35 of the Excise Act 1901 (Cth) (the Act), had in their possession excisable goods upon which excise duty had not been paid in contravention of s.117(1) of the Act, evaded the payment of duty which was payable in contravention of s.120(1)(iv) of the Act, moved, altered or interfered with goods which were subject to the control of Customs contrary to s.61 of the Act, and unlawfully conveyed excisable goods in contravention of s.119(1) of the Act.

1. By his writ the Chief Executive Officer seeks declarations that each defendant committed each of the offences he or it is alleged to have committed, orders that the defendants be convicted of each of the offences, the imposition of fines or penalties, in respect of each conviction, and orders pursuant to s.21B of the Crimes Act 1914 (Cth) against each of the defendants including orders for reparation of the duty short-paid together with interest.

1. In very general terms what the Chief Executive Officer alleges is that the defendants manufactured excisable goods under the Act without being licensed to do so by blending petroleum products within the meaning of s.77G of the Act.

1. On 14 May 2002 the proceeding came before the Listing Master for directions.  That day the Master made a number of interlocutory orders including an order that the plaintiff file and serve on the defendants a statement of the evidence in chief which will be adduced through each witness he intends to call at the trial.

1. The Master refused to make a similar order in respect of the defendants and the plaintiff now appeals from the order of the Master refusing such an application to a Judge of the Court.

1. The basis upon which the Master  refused the application was that excise prosecutions are akin to criminal proceedings and that in criminal proceedings an accused person will not be called upon to disclose his case until the close of the prosecution case and a prima facie case is established.

1. In my opinion these are not criminal proceedings and there can be no question of self-incrimination arising in the case.  See the decision of Byrne J in Controller-General of Customs v Jayakody (unreported 9 November 1993).

1. What is being sought is no more than witness statements.  The order proposed by the plaintiff does not compel anyone to give evidence or produce documents but requires that if it is to be done, proper notice be given.  In that way it may be contrasted with discovery where a coercive power to obtain documents is used.

1. In the present case the defendant's defence gives no inkling of the issues which will be litigated at trial.  The proceeding is complex.  Without adequate notice of the factual matters in dispute, as things stand, the plaintiff will be required to prepare evidence to cover all eventualities.  Perhaps of more importance, if the plaintiff is taken by surprise at the hearing by reason of the nature of the evidence called by the defendant, it is probable that unnecessary delay will occur and unnecessary expenditure be incurred.

1. In considering this appeal one must also have regard to s.136 of the Act which reads:

"Prosecution in accordance with practice rules

136.Every Excise prosecution in a court referred to in subsection 134(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge."

1. The usual practice and procedure of the Court in civil cases of complexity is to order the exchange of witness statements.  I am not persuaded that that practice should be departed from in the present case.

1. Accordingly the appeal from the order of the Listing Master of 14 May 2002 will be allowed.

1. I order that by 4.15 p.m. on 31 October 2002 the defendants file and serve on the plaintiff a statement of the evidence in chief which (subject to any contrary direction of the trial Judge) will be adduced through each witness which they intend to call at trial.  Without the leave of the trial Judge the defendants may not lead evidence which is not contained in the statement of evidence of the witness from whom that evidence is sought to be led.

1. I order that the defendants pay the plaintiff's costs of the appeal.  I make no order as to the costs of the application to the Listing Master on 14 May 2002 because the cost order made that day adequately covered the situation.

1. I grant to the defendants an appropriate certificate under the Appeal Costs Act in respect of their costs of the appeal and the costs of the appeal they are required to pay to the plaintiff.

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