CEO of Customs v Pham

[2006] NSWSC 1011

CITATION:	CEO of Customs v Pham [2006] NSWSC 1011
HEARING DATE(S):	11/9/06, 12/9/06, 13/9/06, 14/9/06, 15/9/06
JUDGMENT DATE :	4 October 2006
JUDGMENT OF:	Bell J at 1
DECISION:	1. Vinh Phat Pham (also known at Peter Pham) and Sung Chau Pham (also known as Linda Pham) are each convicted of an offence that he/she did on or about 25 January 2001 at Sydney in the State of New South Wales, smuggle a quantity of cigarettes, namely 2,098,175 cigarette sticks, into Australia contrary to s 233(1)(a) of the Customs Act 1901 (Cth); 2. That Vinh Phat Pham (also known as Peter Pham) and Sung Chau Pham (also known as Linda Pham) are each convicted of an offence that on or about 22 January 2001 at Sydney in the State of New South Wales he/she did evade payment of duty which was payable in respect of the importation into Australia of 2,098,175 cigarette sticks contrary to s 234(1)(a) of the Customs Act 1901 (Cth); 3. Vinh Phat Pham (also known as Peter Pham) and Sung Chau Pham (also known as Linda Pham) are each convicted of an offence that on or about 22 January 2001 at Sydney in the State of New South Wales, he/she did knowingly or recklessly make a statement to a Customs officer that was false or misleading in a material particular by not declaring the goods contained in a shipping container in Entry for Home Consumption Number 1S.1019.0909P, contained a quantity of cigarettes, namely 2,098,175 cigarette sticks; 4. Vinh Phat Pham (also known as Peter Pham) and Sung Chau Pham (also known as Linda Pham) are each convicted of an offence that on or about 30 January 2001 at Sydney in the State of New South Wales he/she did smuggle cigarettes, namely, 2,099,750 cigarette sticks into Australia contrary to s 233(1)(a) of the Customs Act 1901 (Cth).
CATCHWORDS:	Customs prosecution - smuggling - evade payment of duty - knowingly make false declaration
LEGISLATION CITED:	Customs Act 1901 (Cth) Customs Administration Act 1984 (Cth) Evidence Act 1995
CASES CITED:	Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited [2003] HCA 49; 216 CLR 161 Chief Executive Office of Customs v El Hajje [2005] HCA 35 Dyers v The Queen [2002] HCA 45; 210 CLR 285 Gill v Chief Executive Officer of Customs [2001] NSWCCA 470; 166 FLR 125 L Vogel & Son Pty Ltd v Anderson (1967-1968) 120 CLR 157 Ludwigs Canberra Bond Seller Pty Ltd v Sheen (1982) 65 FLR 347 R v Apostilides (1984) 145 CLR 563 R v Australasian Films Ltd (1921) 29 CLR 195 R v Kneebone [1999] NSWCCA 279 Shepherd v R (1990) 170 CLR 573 White v Ridley (1978) 140 CLR 342 Wilson v Chambers (1925-1926) 38 CLR 131
PARTIES:	Chief Executive Office of Customs (Plaintiff) Vinh Phat Pham (also known as Peter Pham) (First Defendant) Sung Chau Pham (also known as Linda Pham) (Second Defendant)
FILE NUMBER(S):	SC 20979/01
COUNSEL:	R. Bromwich (Plaintiff) M. Robinson / R. Nair (First and Second Defendants)
SOLICITORS:	Australian Government Solicitor (Plaintiff) Burn & Swift Lawyers (First and Second Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Wednesday 4 October 2006

20979/01 Chief Executive Office of Customs v Vinh Phat Pham (also known as Peter Pham) & Sung Chau Pham (also known as Linda Pham)
JUDGMENT

1 BELL J: The plaintiff, the Chief Executive Officer of Customs, under the Minister for Justice and Customs, has control of the Australian Customs Service: s 4 of the Customs Administration Act 1984 (Cth). The plaintiff is responsible for the administration of the Customs Act 1901 (Cth) (the Act). I will refer to the plaintiff in this judgment as Customs. The first and second defendants are married to one another. They are ethnic Chinese who were born in Vietnam and who came to Australia as refugees. They are known as Peter and Linda Pham and I will refer to them by these names in this judgment.

2 The proceedings are a customs prosecution brought under Pt XIV of the Act and were commenced by statement of claim, which was filed on 30 November 2001. Customs claims orders that Peter and Linda Pham be convicted of a number of offences, which are said to arise out of the importation into Australia of two shipping containers containing cigarettes on which duty was payable and which was not paid.

The facts

3 The following is an outline of the facts that are admitted or are otherwise not in controversy.

4 The shipping documents accompanying each of the containers stated that the goods inside the container were 480 packages of gyprock. The consignor of each container was Yoshino Import & Export Pty Ltd (Yoshino), whose address was given as 169 Kaki Bukit Ave 1, #02-00 Shun Li Industrial Park, Singapore 416019. The consignee of each container was an entity, with the registered business name Outrax Company (Outrax), whose principal place of business was given as 88 Harrow Road, Auburn. The proprietor of the Outrax business name is Simon Quoc Wong, who is related to the defendants.

5 The first container was shipped to Australia on board the Hua Yun He and it arrived in Sydney on 25 January 2001. It was examined by Customs officers on 30 January 2001, who found that in addition to the quantity of gyprock declared in the shipping documents, it contained 210 unmarked cardboard boxes (shippers) of cigarettes. Each shipper contained 40 sleeves (cartons) of cigarettes. There were 239,700 cigarettes labelled “filter Winfield 25’s” and 1,858,475 cigarettes labelled “Extra Mild Winfield 25’s”, making a total of 2,098,175 cigarettes in the container. The sleeves of cigarettes were marked “For Export Only”. The cigarettes had previously been exported from Australia to Singapore by British American Tobacco. At the time of the importation customs duty was payable on each cigarette at the rate of $0.19481. The total amount of duty payable in respect of the cigarettes in the first container was $408,745.47.

6 The shipping documents accompanying the first container did not disclose that it contained cigarettes and no customs duty was paid in respect of them.

7 The second container was shipped to Australia on the Bunga Teratai Empat and arrived in Sydney on 30 January 2001. The following day it was examined by Customs officers who found that in addition to the gyprock declared in the shipping documents, it contained 210 unmarked cardboard shippers of cigarettes. Each shipper contained 40 sleeves of cigarettes. There were 250,000 cigarettes labelled “Filter Winfield 25’s” and 1,849,750 cigarettes labelled “Extra Mild Winfield 25’s”, making a total of 2,099,750 cigarettes in the container. The sleeves of cigarettes were marked “For Export Only”. The cigarettes had previously been exported from Australia to Singapore by British American Tobacco.

8 The total amount of duty payable on the cigarettes in the second container was $409,052.30.

9 The shipping documents accompanying the second container did not disclose that it contained cigarettes and no customs duty was paid in respect of them.

10 On 19 January 2001 Linda Pham asked Silver State Agencies to act as Outrax’s agent to clear the first container through Customs. She furnished Silver State Agencies with the following documents:

(a) Bill of lading, No. SKI/SYD/0405, being the bill of lading issued in Singapore naming Outrax as the consignee;
(b) Yoshino invoice No. YIE1001/2001, dated 13 January 2001;
(c) Yoshino’s packing list No. YIE1001/2001;
(d) Yoshino’s packing declaration dated 11 January 2001.

11 On 30 January 2001 Linda Pham asked Silver State Agencies to act as Outrax’s agent to clear the second container through Customs. She furnished Silver State Agencies with the following documents:

(a) The Bill of lading No. SKI/SYD/0408, being the bill of lading issued in Singapore naming Outrax as the consignee;
(b) Yoshino’s invoice No. YIE1002/2001 dated 19 January 2001.

12 Silver State Agencies engaged T & D Customs Services Pty Ltd (T & D Customs) to prepare and lodge a Customs Entry for Home Consumption with respect to the first and second containers.

13 T & D Customs, acting on instructions from Silver State as agents for Outrax, lodged an electronic Entry for Home Consumption (No. IS.1019.0909P) on 22 January 2001 declaring to Customs that the first container contained 480 packages of gyprock.

14 The bulk of the cigarettes found by Customs’ officers on 31 January 2001 were seized by them. The container was then re-packed with a lesser quantity of cigarettes, a number of empty unmarked shippers and the packages of gyprock. The instructions accompanying the first container were that it was to be delivered to 43 Clapham Road, Regents Park.

15 Peter and Linda Pham were the owners of the premises at 43 Clapham Road, Regents Park which included a warehouse (the warehouse premises). The first container, containing the smaller number of shippers of cigarettes, was delivered to the warehouse premises on 2 February 2001.

16 Peter Pham, assisted by others, partially unloaded the first container. Linda Pham was present at the warehouse premises during some of this time.

17 The delivery of the first container and its partial unloading was recorded on videotape by Customs officers who executed search and seizure warrants on the warehouse premises prior to the completion of the unloading. Later that day search warrants were executed by Customs officers on Peter and Linda Pham’s home at 35 Badgery Avenue, Homebush (the family home), 88 Harrow Road, Auburn and 31 Kessell Avenue, Homebush West.

18 On or about 4 March 2001 T & D Customs Services, on the instructions of Silver State as agents for Outrax, lodged an electronic Entry for Home Consumption (No. 1S.1058.1211J) declaring to Customs 480 packages of gyprock in the second container.

19 On 19 October 2001 Peter Pham paid Silver State Agencies the outstanding balance of the Outrax account for work done in connection with the first and second containers.

The charges

20 Customs charges Peter and Linda Pham with three offences arising out of the importation into Australia of the first container:

1. That on or about 25 January 2001 he/she smuggled 210 shipper cartons of cigarettes (2,098,175 cigarette sticks) comprising 239,700 sticks of Winfield “Red” cigarettes; and 1,858,475 sticks of Winfield “Blue” cigarettes contrary to s 233(1)(a) of the Act.
2. On or about 22 January 2001 he/she evaded payment of duty which was payable in respect of the importation into Australia of the 2,098,175 cigarette sticks contrary to s 234(1)(a) of the Act.
3. On or about 22 January 2001 he/she knowingly or recklessly made a statement to a Customs officer that was false or misleading in a material particular by not declaring the consignment of 2,098,175 cigarette sticks in Entry for Home Consumption No. 1S.1019.0909P, contrary to s 234(1)(d) of the Act.

21 Customs charges Peter and Linda Pham with the following offence arising out of the importation into Australia of the second container:

1. That on 30 January 2001 he/she did smuggle cigarettes, namely 210 shipper cartons (2,099,750 cigarette sticks) comprising 250,000 Winfield “Red” cigarette sticks and 1,849,750 Winfield “Blue” cigarette sticks, an offence contrary to s 233(1)(a) of the Act.

22 The nature of customs prosecutions brought under Pt XIV of the Act was considered in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited [2003] HCA 49; 216 CLR 161. Hayne J (with whose judgment Gleeson CJ and McHugh J agreed) rejected the endeavour to classify revenue proceedings of this character as either criminal or civil. Importantly, it was determined that the standard of proof is beyond reasonable doubt.

23 In setting out the ingredients of each of the offences I will refer to the provisions of the Act as they stood at the material time.

24 Section 233(1) of the Act provides that a person shall not:

(1)(a) Smuggle any goods.

25 Section 4 of the Act defines “goods”:

Goods means movable personal property of any kind and, without limiting the generality of the expression, includes documents, vessels and aircraft.

and “Smuggling”:

Smuggling means any importation, introduction or exportation or attempted importation, introduction or exportation of goods with intent to defraud the revenue.

26 In Wilson v Chambers (1925-1926) 38 CLR 131 at 150 Starke J considered what constitutes an importation under the Act:

It cannot, in my opinion, be maintained that the mere act of bringing goods into port constitutes an importation; though unexplained it may be evidence of the fact. If goods, however, are brought into their port of destination for the purpose of being there discharged, the act of importation is complete. On the other hand, the act of importation is not complete if a ship enter some port of call with goods on board which is not the destined port of discharge for those goods. Actual landing is not necessary, as was argued, to constitute an importation for fiscal purposes.

27 It was not in issue that the first and second containers were imported into Australia.

28 In Gill v Chief Executive Officer of Customs [2001] NSWCCA 470; 166 FLR 125 Giles JA (with whose judgment Howie J and Carruthers AJ agreed) discussed the elements of the offence of smuggling under s 233(1)(a) at 131 [34] – 138 [61]. In this context his Honour noted the definition of an intention to defraud the revenue which was stated in R v Australasian Films Ltd (1921) 29 CLR 195 at 218, namely, an “intention to prevent something getting into the revenue which the revenue is entitled to get”.

29 It is an agreed fact that duty was payable in respect of the cigarettes in each of the two containers in the amounts that I have stated. It was not in issue that the presence of the cigarettes in each container was not declared to Customs. The central issue, in the way the case was conducted, on each of the charges of smuggling was proof of the defendant’s knowledge of the presence of the cigarettes in the containers.

30 Section 234(1) of the Act provides that:

(1) A person shall not:
(a) Evade payment of any duty which is payable.

31 Duty was payable on the cigarettes contained in the first container. Customs approached the charges under subs (1)(a) on the basis that it was under an obligation to prove that each defendant was under a legal obligation to pay the duty. It is necessary to refer to a number of provisions of the Act to explain how the obligation is said to have fallen on the defendants in circumstances in which they were not named as the consignees of the goods in the first container.

68 Entry of imported goods
(1) This section applies to:
(a) goods that are imported into Australia;
…
(2) The owner of goods to which this section applies may, at any time before the ship or aircraft carrying the goods first arrives at a port or airport in Australia at which any goods are to be discharged, enter the goods:
(a) for home consumption; or
(b) for warehousing or
(c) for transhipment.
(3) If the owner of goods to which this section applies does not enter the goods under subsection (2) for a purpose set out in that subsection, the owner must enter the goods for one or other such purpose after the ship or aircraft carrying the goods first arrives at a port or airport in Australia at which the goods are to be discharged.

32 An import entry concerning goods to which s 68 applies that are intended to be entered for home consumption is effected by document or by computer: s 71A(1). A documentary import entry must be made by the owner of the goods concerned and must be communicated to Customs in one of the ways set out in s 71A(2)(b). A computer import entry must be transmitted by a registered COMPILE user as the owner, or on behalf of the owner, of the goods concerned: s 71A(3). The COMPILE computer system is defined in s 4 of the Act. It was not in issue that the electronic import Entry for Home Consumption of the goods contained in the first container was transmitted by a registered COMPILE user.

33 Section 132AA provides:

132AA When import duty must be paid
General rule
(1) Import duty payable on goods described in an item of the following table must be paid by the time indicated in the item. Import duty on goods covered by both items 1 and 2 is payable by the time indicated in item 2.

When import duty must be paid

ItemDescription of goodsTime by which duty on goods must be paid

1Goods entered for home consumptionTime of entry of the goods for home consumption


…

34 Section 153 provides:

153 Recovery of duties
All duties shall constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector.

35 An extended definition is given to “owner” in s 4 of the Act:

Owner in respect of goods includes any person (other than an officer of Customs) being or holding himself out to be the owner, importer, exporter, consignee, agent, or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods.

36 It is Customs’ case that Peter and Linda Pham were each owners of the goods in the first container, in that each was the importer and the person having control or power of disposition over the goods.

37 In Wilson v Chambers Knox CJ discussed the offence of evading payment of duty under s 234(1)(a), observing (at 136):

The distinction in meaning between the words “evade” and “avoid” is well established, and a charge of evading payment is not made out by evidence which proves no more than that the person charged failed or omitted to pay an amount payable by him. There was nothing to suggest that the agreement to sell the paint to the ship was other than a genuine agreement, nor did the evidence tend to show that the respondents did not honestly believe that in the circumstances it was not necessary to enter the goods or to pay duty in respect of them, or that their intention in selling the goods was to escape payment of duty. In fact the evidence proved no more than an omission to pay duty which was legally payable.

38 Counsel for Customs also drew attention to the decision of Gallop J in Ludwigs Canberra Bond Seller Pty Ltd v Sheen (1982) 65 FLR 347 at 353 – 354. His Honour said (at 354):

In the context of considering the meaning of the word “evasion” in the Income Tax (Management) Act 1936 (NSW) Dixon J said in Denver Chemical Manufacturing Co v Commissioner of Taxation (NSW) (1949) 79 CLR 296 at p 313 that it was unwise to attempt to define the word. He then went on to say that some blameworthy act or omission on the part of the taxpayer is contemplated. He said an intention to withhold information lest the Commissioner should consider the taxpayer liable to a greater extent than the taxpayer is prepared to concede is conduct which, if the result is to avoid tax, would justify finding evasion. This meaning was adopted by Fullagar J in Australasian Jam Co Pty Ltd v Federal Commissioner of Taxation (1953) 88 CLR 23 at pp 38-39.
It is appropriate in my view to apply the meaning enunciated by Dixon J in the penal provisions now under consideration, namely, that the word “evade” means more than the intentional withholding of information or the mere furnishing of misleading information, but requires some blameworthy act or omission on the part of the appellants.

39 I approach the question of whether Customs has established that Peter and Linda Pham evaded payment of duty payable in respect of the cigarettes contained in the first shipping container on the basis that it is necessary to establish beyond reasonable doubt in each case that he/she was under an obligation to pay the duty and that he/she intentionally failed to do so in circumstances that make the omission blameworthy in the sense discussed above.

40 Section 234(1)(d) provides:

(1) A person shall not:
…
(d) knowingly or recklessly:
(i) make a statement to an officer that is false or misleading in a material particular; or
(ii) omit from a statement made to an officer any matter or thing without which the statement is misleading in a material particular;

41 The offence is particularised as the making of a statement knowing it to be false or misleading (or reckless as to its falsity) being the representation in the electronic Australian Customs Entry for Home Consumption No. 1S.1019.0909P. This described the consignment shipped by Yoshino and the subject of the entry into home consumption as 480 packages of gyprock. It did not state that the consignment included 210 shippers of cigarettes.

42 It was not submitted that the declaration that the goods in the first container comprised 480 packages of gyprock (without reference to the presence of 210 shippers of cigarettes) was not a statement that was false or misleading in a material particular. The issue in the way the case was conducted was whether Customs had established the defendants’ knowledge of the falsity of the declaration at the time it was made.

43 The three offences that are charged arising out of the importation of the first container are connected steps in a scheme. Nonetheless they involve separate conduct in contravention of the Act and it is open to Customs to prosecute the defendants in relation to each of them: L Vogel & Son Pty Ltd v Anderson (1967-1968) 120 CLR 157.

Prima facie proof of facts

44 Section 255 of the Act provides:

255 Averment of prosecutor sufficient
(1) In any Customs prosecution the averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter or matters averred.
(2) This section shall apply to any matters so averred although:
(a) evidence in support or rebuttal of the matter averred or of any other matter is given by witnesses; or
(b) the matter averred is a mixed question of law and fact, but in that case the averment shall be prima facie evidence of the fact only.
(3) Any evidence given by witnesses in support or rebuttal of a matter so averred shall be considered on its merits and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.
(4) The foregoing provisions of this section shall not apply to:
(a) an averment of the intent of the defendant; or
(b) proceedings for an indictable offence or an offence directly punishable by imprisonment.
(5) This section shall not lessen or affect any onus of proof otherwise falling on the defendant.

45 Customs relies on the averment of the facts pleaded in paragraphs 4 – 30 in the statement of claim as prima facie evidence of those matters. It did not seek to rely on the averments alone to establish its case in support of any of the offences. The parties were agreed on a number of facts and their agreement, stated in writing and signed by their respective solicitors, was expressed to be made under s 191 of the Evidence Act 1995. In addition to the averments and the agreed facts, Customs read the affidavits of a number of customs officers who were involved in the execution of search and seizure warrants. A number of documents were also tendered in its case. Three officers were required for cross-examination, however much of the evidence concerning the investigation was not in dispute. Before turning to the evidence I should say something about some of the averments in the statement of claim.

46 In paragraph 4 Customs avers that Peter and Linda Pham did on or about 25 January 2001 at Sydney in New South Wales, smuggle cigarettes, namely 210 shipper cartons of cigarettes contrary to s 233(1)(a) of the Act. Particulars are set out in paragraphs 6 – 17. Smuggling, for present purposes, consists of the act of importation accompanied by the intention to defraud the revenue. I approach the pleading on the basis that the averment that each of the defendants “smuggled” the cigarettes is prima facie evidence that each of them was involved in the importation of the cigarettes into Australia, but that the averment is ineffective as proof of their intent. The inference that the cigarettes were imported into Australia with intent to defraud the revenue may be established from the circumstances in which the importation took place, which are the subject of the facts averred in paragraphs 6 – 12 and 15 – 17 of the pleading, the agreed facts and the evidence.

47 Customs avers in paragraph 22 of the statement of claim that Peter and Linda Pham did on or about 30 January 2001 at Sydney in New South Wales smuggle cigarettes, namely 210 shipping cartons, contrary to s 233(1)(a) of the Act. Once again, the averment that each defendant smuggled the cigarettes is prima facie evidence that each of them was involved in the importation of the cigarettes into Australia as particularised in paragraphs 24 – 30 of the pleading, but is ineffective as proof of their intent.

48 The averment in paragraphs 4 and 22 of the pleading that the cigarettes were smuggled “contrary to s 233(1)(a) of the Act” takes proof of Customs’ case no further. Section 255 provides a mechanism for prima facie proof of the facts averred but no more: Chief Executive Officer of Customs v El Hajje [2005] HCA 35; 79 ALJR 1289.

The Investigation

49 Colin Bulloch, is the Customs officer in charge of the investigation of these matters. He conducted a search of the Customs Total Retrieval and Analysis of Customs Entries (TRACE) database to identify the consignees in Australia of goods shipped by Yoshino for the period 1 June 1997 to 4 June 2002. Yoshino was the consignor of three shipments of goods into Australia in the period. The first was a consignment to Intrax Global Trading Company (Intrax) of goods declared on Australian Customs Service Entry for Home Consumption No 1S10081598, being a consignment of gyprock, and the two consignments to Outrax, that are the subject of the proceedings.

50 Documents located on the hard drive of a computer located in a bedroom of the family home included one titled “Distributor: BRITISH AMERICAN TOBACCO”. It read:

Distributor: BRITISH AMERICAN TOBACCO
Address:
Westfield Drive
East Gardens 2036
N.S.W. Australia
Postal Address:
PO Box 275
Botany 1455
N.S.W Australia
Contact number:
Tel: [phone]
Fax: [phone]
PRODUCTS:
WINFIELD (blue) EXTRA MILD 12mg
WINFIELD (red) MILD 16mg
WINFIELD (gold) SUPER MILD 8 mg
Note: The Winfield (sic) blue extra mild product is sold the most. For every 100 carton of Winfield blue, 50 cartons of Winfield red, and 50 cartons of Winfield gold products are sold in Australia.

The document was created at 9:27PM on Wednesday 11 October 2000 and a copy of it was printed at 9:37PM on that day.

51 Also located on the hard drive of the computer in the family home was a template of letterhead bearing the name “Outrax Company” and the address 88 Harrow Road, Auburn.

52 An application for registration of the Intrax business name, which is dated 28 November 2000, was lodged with the Department of Fair Trading on 30 November 2000. The lodging party is recorded as Tonny Tong of 31 Kessell Avenue, Homebush West. Tonny Tong’s telephone number is given as 0416 098028. The signature appearing on the application is “Tony”. The body of the application has been completed in black ink. The signature has been overwritten in black ink. Traces of blue ink underneath the black are visible. A piece of pad paper seized during the execution of the search warrant at the family home bears the signature “Tony” written four times. The signatures are consistent with the signature on the application for the registration of the Intrax business name and they have the appearance of being practice signatures. The piece of paper bearing the signatures was located with the Certificate of Registration of the Intrax business name. Intrax’s principal place of business is recorded on the certificate as 31 Kessell Avenue, Homebush West.

53 A Telstra telephone account addressed to Mr V P Pham of 32 Badgery Avenue, Homebush for telephone service 02 9746 5636 was seized during the execution of the search warrant. This document records four calls made from the service 02 9746 5636 to the Singapore telephone number recorded on Yoshino’s invoice as its telephone number. Calls from the Pham service to Yoshino were made on 21 December 2000, 23 December 2000, 3 January 2001 and 10 January 2001.

54 Other documents seized during the execution of the search at the family home included an invoice addressed to Intrax dated 25 December 2000 for a shipment of gyprock on the Patsy N, which had an estimated date of departure from Singapore on 25 December 2000; a Yoshino packing list dated 25 December 2000 addressed to Intrax and a Yoshino packing declaration of the same date.

55 The Australian Customs Entry for Home Consumption, No. 1S1008.1598M, for the consignment of 480 packages of gyprock shipped by Yoshino to Intrax was prepared by T & D Customs. The goods were loaded on board the Patsy N on 25 December 2000.

56 The arrival notice for the consignment of gyprock to Intrax suggests that the Patsy N had been due in Sydney on 4 January 2001.

57 Silver State Agencies acted on behalf of Intrax in connection with clearance of the consignment of gyprock through Customs. The consignment arrived in Sydney on 9 January 2001 and was delivered to the warehouse premises on 11 January 2001.

58 Linda Pham was the subscriber to telephone service 0416 098 028 at the time of these events. This is the telephone number that is recorded on the application for registration of Intrax business name. Silver State Agencies’ tax invoice for work done on behalf of records Linda Pham’s telephone number for Intrax. The tax invoice was issued on 11 January 2001. A receipt in the sum of $400 for unloading the container, issued by Intrax, dated 12 January 2001, was found during the execution of the search warrant at the family home.

59 The template for the Outrax letterhead was created on 10 January 2001.

60 On 13 January 2001 the first container was loaded in Singapore and the bill of lading identifying Outrax as the consignee was issued.

61 On Tuesday 16 January 2001 an application to register the Outrax business name was made by Simon Wong. Among the documents located during the search of the family home was a blank application for registration of a business name bearing the signature “Simon Wong” in blue ink. The application that was lodged with the Department of fair Trading by Simon Wong is signed by him in blue ink; the remaining details are recorded in black ink. A pencil cross next to the place for signature is consistent with a view that the document was filled out by a person other than Mr Wong. Nelson Lee & Associates of P.O. Box 21, Kogarah, is recorded on the application in the space indicated for the lodging party. A diary located during the search of the family home records the name Nelson Lee and the same address as is recorded on the application.

62 Outrax’s principal place of business was given as 88 Harrow Road, Auburn. No telephone service was listed under Outrax’s name.

63 The Australian Customs Entry for Home Consumption, No. 1S1019.0909P for the first container prepared by T & D Customs on 19 January 2001 declared the goods to be 480 packages of gyprock. The instructions recorded by Silver State Agencies were to deliver the container to Outrax at the warehouse premises.

64 Customs duty on the 480 packages of gyprock in the first container was paid by T & D Customs by means of an electronic funds transfer on 23 January 2001 in an amount of $164.87.

65 The first container was delivered to the warehouse premises on the morning of 2 February 2001.

66 Peter Pham arrived at the warehouse premises shortly thereafter. He opened up the warehouse and proceeded to unlock the container. Then with the assistance of his son, Jason, and two other persons, Charles Crittle and Sasha Mansour, he commenced to unload the container. The packages of gyprock were stacked inside the warehouse. The empty shippers were thrown out of the container onto the ground and the shippers containing cigarettes were stacked on a pallet on a forklift in the container. It was at this juncture that the Customs officers entered the premises and executed the search warrant.

67 Linda Pham was present at the warehouse premises during the time the container was being unloaded. She had left the premises prior to the completion of this exercise and before the Customs officers executed the search warrant.

68 Peter Pham has a limited command of English. During the course of a conversation with customs officer Bulloch, Peter Pham said that Simon Wong was “renting warehouse here”. He said that he and his wife, Linda, owned the premises. Peter Pham was cooperative with the customs officers during the execution of the search warrant. Linda Pham returned to the premises while the warrant was being executed. She, too, was cooperative.

69 During the execution of the search warrant at the warehouse premises customs officers also spoke with Jason Pham in the presence of his father. Jason’s attention was directed to stacks of gyprock, which appear to have been delivered to the warehouse premises on an occasion prior to 2 February 2001. Jason said that these stacks of gyprock had come from a different container. I am satisfied that this was the gyprock consigned to Intrax. In the course of this discussion Jason was asked who was renting the warehouse. He said, “the guy from China”, and he went on to say that the guy from China was named Tony.

70 In light of the significance placed by counsel for the defendants on Peter Pham’s assertion that Simon Wong was renting the warehouse, I will set out some further parts of the conversation between customs officers and Jason and Peter Pham. This conversation related to the 11 stacks of gyprock that had been delivered prior to 2 February 2001.

Bulloch: “So who imported this container of gyprock”.
Rooney said: “What name?”
Vinh Phat Pham said: “(indecipherable) … “Tony”.
Bulloch: “Tony told you?”
Vinh Phat Pham said: “Tony Tong”.
Bulloch: “Tony Tong. How do you know Tony?”
JP and PP speak in an Asian language.
Jason Pham said: “Just introduced by a friend”.
Rooney said: “Which friend?”
I heard Jason Pham and Vinh Phat Pham talk in a native language.
Jason Pham said: “He said just in a social situation?.
PP speak in an Asian language
Jason Pham said: “He says how can he remember so much?”
I said: “Okay that okay that’s alright, I understand, I understand”.
I heard Jason Pham and Vinh Phat Pham talk in a native language.
Vinh Phat Pham said: “I not answering any question”.
I said: “Can we ring Tony?”
JP and PP speak in an Asian language
Jason Pham said: “He said he’s not an Australian resident”.
I said: “Okay how is Tony going to get his goods?”
Jason Pham said: “I don’t know”.
Vinh Phat Pham speaks in an Asian language.
Rooney said: “Would you like to interpret what your father just said?”
Jason Pham said: “No”.
I said: “Okay”.

71 Later in the course of the same conversation the question of Simon Wong’s identity was raised. Officer Bulloch asked how Peter Pham knew Simon Wong. There followed some discussion between Jason and his father in a foreign language and then Jason said, “he said it’s a very long time he can’t remember”.

72 At the time that customs officers were executing the warrant on the warehouse premises other officers were engaged in executing a search warrant on the family home. The latter search commenced at around 11:34AM. At the time an elderly woman and the defendants’ daughter, a young girl, were at home. Linda Pham arrived home about one hour later. After her return a customs officer saw her and the elderly woman standing in front of a tall wooden cabinet, which contained documents. Linda Pham had a bundle of documents in her hand and the elderly woman appeared to be stuffing something down the front of her trousers. Linda Pham shut and locked the cabinet doors. As the officer called out to a colleague Linda Pham took hold of her arm, saying, “It’s okay, no need to worry”. She threw a bundle of documents onto the floor. The documents were seized. Many of them are originals. They include:

· The bill of lading, the packing list; the packing declaration and the Yoshino invoice; relating to the first container;

· The Yoshino packing declaration; the packing list; the Yoshino invoice No. YIE1002/2001 and the bill of lading relating to the second container;

· A cheque butt dated 18-01-01 recording a cheque drawn in favour of Silver State Agencies for “customer service” in an amount of $961.59 and an A4 size envelope printed with the Yoshino name and logo and bearing the handwritten notation “Outrax Company”;

· A document folder apparently supplied by Silver State Agencies to Intrax relating to a consignment shipped on board the Patsy N; the original receipt issued by Intrax in the amount of $400 for unloading a container on 12.1.2001; the Yoshino invoice; packing list and packing declaration all relating to the consignment of gyprock to Intrax; the tax invoice issued by Silver State Agencies with respect to the consignment shipped on the Patsy N; the Australian Quarantine and Inspection Service final direction relating to the consignment to Intrax; the Australian Customs Entry for Home Consumption for the goods consigned to Intrax Global; the electronic funds transfer receipt for the payment of duty on the goods consigned to Intrax; the bill of lading for the goods consigned to Intrax.

73 During the search of a bedroom a Customs officer located a yellow folder under a fitted sheet. The folder contained a number of Customs documents. These include:

The arrival notice for the Intrax consignment; a copy of the Yoshino invoice packing list, and packing declaration for the Intrax consignment;

Photographs that are in evidence depict the location of the folder containing the documents. An attempt had been made to conceal the folder and its contents.

74 During the search, the defendants’ young daughter placed a quantity of documents underneath a Perspex sheet that was on top of a dog kennel. Officers lifted the Perspex sheet and located documents in a plastic sleeve. Photographs of the documents as they appeared after the Perspex was removed are in evidence. The documents that were seized from this location comprised:

The blank application for registration of a business name bearing the signature Simon Wong; a document with handwriting recording the date of birth 20/1/72 and the name Simon Quoc Wong 88 Harrow Road, Auburn NSW 2144; the piece of paper bearing the four signatures of “Tony”; the original certificates of registration of the business names of Intrax and Outrax; a receipt issued by the Department of Fair Trading receipt addressed to Tonny Tong of 31 Kessell Avenue, Homebush West relating to an application for the registration of a business name, which was lodged on 30 November 2000; an Australian Taxation Office notification of registration of an Australian Business Number (ABN) addressed to Simon Quoc Wong of 88 Harrow Road, Auburn, relating to a business said to be operating from that address, trading under the name Simon’s Delivery Service; an Australian Taxation Office refund notice addressed to Tonny Tong care of Nelson Lee & Associates; a tax invoice addressed to Tonny Tong of Australian Westax Pty Ltd dated 30/11/00 and described as being for “business registration and business name registration” in an amount of $100.

75 Search warrants were executed on 2 February 2001 on the premises at 88 Harrow Road, Auburn (the principal place of business of Outrax) and at 31 Kessell Avenue, West Homebush (the principal place of business of Intrax). No shipping or other documents connecting either premises with importations from Yoshino, or with Outrax or Intrax were located in the course of these searches.

76 Russell Merriman is a retired Customs officer. He swore an affidavit in the proceedings on 20 July 2004 at which time he was employed in the Commercial Compliance Branch of the Australian Customs Service. Annexed to his affidavit was a statement made by him on 18 January 2002. In his statement Mr Merriman said that he had met Peter and Linda Pham at the end of 1995, when he was undertaking an audit of P & L Trading, which was trading at the warehouse premises. In the course of conducting the audit he had discussed gardening with Linda Pham. The discussion led to Peter and Linda Pham visiting Mr Merriman and his wife at their home and they had become friends.

77 Mr Merriman recorded in his statement that in mid-January 2001 he had been invited by Peter Pham to the family home for dinner to assist him to complete a Tariff Advice Application. In oral evidence Mr Merriman said he had been mistaken as to the date recorded in the statement. The invitation had been in mid-January 2000. In other respects he attested to the correctness of his statement. In his statement Mr Merriman set out the following account of a conversation that had taken place with Peter Pham on this occasion:

He said to me words to the effect “how could I smuggle cigarettes into Australian without being caught? I said to him, words to the effect “don’t be so bloody stupid Peter, I can’t advise you on something like that. Even if I could I wouldn’t, but as that side is handled by another branch of Customs, the quickest way to get something looked at would be for me, or any other officer, to push a shipment through.”
He then said to me words to the effect “oh no I was just thinking if things went bad”. I said to him words to the effect “Peter the quickest way for you to get into strife would be to try something this stupid”.
Mrs Linda Pham and Jason Pham (Peter’s eldest son, age about 19) who were also present in the room then had a conversation in a language that I did not understand. The conversation involved raised voices.
Mr Pham then said to me “Russell, it was just an idea, it will never happen.”
The family then continued the conversation in an unknown language.
There was no further mention of cigarettes.

78 Mr Merriman was cross-examined. He said that at the time he conducted the audit Peter and Linda Pham were in the business of importing cooking oil. He agreed that he had been interviewed by Internal Affairs’ officers in April 2001 and that he had given an account of the conversation with Peter Pham. In the interview he had put the conversation as having occurred “18 months ago” (which would have been around November 1999). He agreed he had given the 18-month estimate at the interview but he maintained that the conversation occurred after Christmas 2000.

79 Mr Merriman agreed that Peter Pham’s spoken English is limited. He described Peter Pham as a person who could make himself understood if one listened to him. It was necessary to carefully select the words used in conversing with him since technical language or idiom would not be understood.

80 Mr Merriman readily agreed that Peter Pham had not used the word “smuggle” in the conversation. He was asked these questions and he gave these answers:

Q. So when you say in your statement he said, “how could I smuggle cigarettes?” he didn’t use that word, he may have used other words, is that correct?
A. Yes.
Q. But you understood the gist of it, as it were …
A. Yes.
Q. … that he was trying to communicate to you?
A. I can’t swear to this but it was something like “get in”, some words to that effect, but I wouldn’t, you know, say that is exactly word perfect (T 62.45-56).

81 Mr Merriman was asked if it was possible that he had misheard or misunderstood what Peter Pham had said to him. He was emphatic in his denial of either possibility. He impressed me as a careful witness, who did not appear to entertain ill will towards the defendants. He made appropriate concessions, as I have indicated. Mr Merriman was confident that Peter Pham had spoken of cigarettes in the course of this discussion, and that he had interrupted the conversation and made clear that he would not be a party to any illegal conduct.

82 Mr Merriman’s evidence of a discussion in which Peter Pham referred to cigarettes and which led to him, Merriman, saying that the quickest way to get into strife would be to try something this stupid, was not challenged. Mr Merriman’s evidence that Peter Pham had sought to reassure him, saying words to the effect that, “it had just been an idea that would never happen” was also not challenged.

83 I am satisfied beyond reasonable doubt that there was a conversation in which Peter Pham asked Mr Merriman about how cigarettes might be brought into Australia without paying duty. The conversation took place at least ten months before any steps were taken in connection with the importation of any goods into Australia from Yoshino. Nonetheless, the conversation is not without significance in determining whether Customs has established each of the offences.

The submissions

84 Counsel for the defendants criticised Customs’ case as being manifestly incomplete. Complaint was made that a number of witnesses should have been called. These were identified in written submissions as:

Simon Wong;
Tonny Tong;
Robert Kwok (or anyone from Silver State Agencies);
Anyone from T & D Customs Services;
Dan Crittle;
Sasha Mansour;
Nelson Lee Accountants (name on Outrax registration document);
Someone to explain the documentation and full and proper procedures of importation for the Court (so as to enable the Court to make proper findings as to the complex and specialised documentation tendered) (WS P 2 [12]).

85 The circumstances in which a Jones v Dunkel inference may be drawn, if at all, against the prosecutor in criminal proceedings is unclear: Dyers v The Queen [2002] HCA 45; 210 CLR 285 per Gaudron and Hayne JJ at 291 [6]. The scope for drawing such an inference against the plaintiff in a Customs prosecution may be more confined than in an ordinary civil proceeding. It is not necessary to determine the question in light of my view that the basis for drawing such an inference has not been established with respect to any of the persons named. The circumstance that Simon Wong and Tonny Tong were not called in Customs case has been adequately explained. I will return to this. No issue was raised concerning the role played by Silver State Agencies or T & D Customs in the clearance of the containers through Customs. There was no issue that Messrs Crittle and Mansour assisted Peter Pham to unload the first container. There was no issue that the name Nelson Lee, Accountants, appeared on the certificate of registration of Outrax. Counsel for the defendants did not identify the inferences favourable to the defendants that it was submitted were to be drawn by reason of the circumstance that Customs did not call these persons.

86 Customs officer Bulloch wrote to the solicitor acting for Peter Pham, Linda Pham, Jason Pham and Simon Wong on 10 October 2001. In that letter he offered each an opportunity to participate in a record of interview in relation to the events surrounding the importation of the first and second containers. The solicitor responded by facsimile on 18 October 2001, confirming that he acted for the Phams and Simon Wong, and stating that he had conveyed Customs’ request and that each had instructed him to advise that he/she declined the invitation.

87 In October 2001 Customs officers made inquiries in an effort to identify Tonny Tong and were unable to do so.

88 I consider that the reason Customs did not call Simon Wong has been adequately explained: he was unwilling to supply a statement setting out what he would say. The circumstance that Customs did not call Tonny Tong has been adequately explained: Customs officers made inquiries to ascertain his identity and were unable to locate such a person.

89 In oral submissions counsel refined his submission and did not press criticism of Customs’ case arising out of the failure to call any of the persons named in his written submissions save for Simon Wong and Tonny Tong. He submitted that Customs was under a continuing obligation to endeavour to obtain a proof of evidence from Simon Wong up to the conclusion of the hearing and under a continuing obligation to pursue inquiries to establish the identity of Tonny Tong, in order to obtain his account of the Intrax importation. He relied upon the decision of the High Court in R v Apostilides (1984) 154 CLR 563 and the Court of Criminal Appeal in R v Kneebone [1999] NSWCCA 279. The circumstances in Kneebone seem to me to have raised somewhat different considerations to those with which I am concerned. In Kneebone the Crown failed to call a person, who was an eyewitness to the assault on the complainant’s version of events. The prosecutor was in possession of a statement from that potential witness, in which the happening of the assault was denied.

90 Simon Wong is a person who was suspected of involvement in the commission of offences arising out of the importation of the first and second containers. Customs officers sought to interview him and he declined to do so. I do not accept that Customs is to be criticised for failing to renew efforts to interview Mr Wong in circumstances in which he has refused to speak to them. Apostilides and Kneebone do not impose on the prosecutor an obligation to direct the conduct of on-going investigations such as those proposed by counsel in relation to the person Tonny Tong.

91 Counsel submitted that Customs had in each case failed to exclude the reasonable possibility that the first and the second shipping containers were imported into Australia by Simon Wong and that his clients were unaware of the presence of the cigarettes in them. He relied upon the following evidence in support of this submission:

· Simon Wong registered the business name Outrax Company;

· Simon Wong is a close relative of the defendants – the evidence suggests that he is Linda Pham’s nephew. It is submitted to be unsurprising that she and her husband may have assisted him to clear consignments of goods through Customs since they have been in the business of importing goods into Australia for a number of years;

· The presence of the original shipping documents for the first and second container is consistent with Linda Pham arranging on her nephew’s behalf for them to be cleared through Customs;

· The first container was unpacked in clear view of a street, which is reasonably trafficked and the surveillance videotape does not evidence any attempt by Peter Pham to disguise what was being done;

· Peter Pham was cooperative with Customs agents when they executed the search warrant on the Clapham Road warehouse;

· Peter Pham told Customs agents that Simon Wong rented the premises at 43 Clapham Road.

92 The evidence does not disclose what, if any, role Simon Wong played in connection with the importation of the first and the second container into Australia beyond the fact of registering the business name of Outrax. It is not necessary that Customs exclude the reasonable possibility that Simon Wong had an interest in the importation of each of the containers.

93 In relation to the offences that charge the defendants with smuggling cigarettes, it is sufficient that Customs establish beyond reasonable doubt that each was involved in importing the container into Australia, knowing that cigarettes were concealed within it and intending thereby to defraud the revenue.

94 In relation to the offence under s 234(1)(a) of evading payment of duty, as I have said, counsel for Customs accepted that it was necessary to establish that Peter and Linda Pham were under a legal obligation to pay duty on the cigarettes. In his submission, they were “owners” of the goods for the purposes of the Act and were each subject to a legal obligation to pay duty on them. This was so even if Simon Wong was also an “owner” of the goods. He submitted that regardless of the nature of any role played by Simon Wong with respect to the importation of the first container, the evidence established that Peter and Linda Pham were jointly involved in importing it into Australia. In his submission Peter Pham was complicit in the instructions that were given to Silver State concerning the goods that were to be declared as being in the first container.

95 Counsel for the defendant advanced possible explanations consistent with innocence for a number of the individual circumstances relied upon by Customs in support of the ultimate conclusion of guilt. It is not necessary that I be satisfied beyond reasonable doubt in respect of each circumstance, but rather that the circumstances when viewed together admit of no rational explanation other than guilt: Shepherd v R (1990) 170 CLR 573.

96 I exclude as fanciful the hypothesis that 210 shippers of Winfield cigarettes manufactured in Australia and marked “For export only” were shipped from Singapore to Sydney in containers of gyprock by accident. I am satisfied that the importation of the first and second containers from Yoshino was a deliberate scheme to import a substantial quantity of cigarettes into Australia without the payment of customs duty.

97 I am satisfied beyond reasonable doubt that Peter and Linda Pham were involved in the importation of the first and the second containers from Yoshino and that each knew that the cigarettes were concealed in each container. In arriving at this conclusion I have excluded any reasonable possibility that Peter and Linda Pham acted as the innocent agents of Simon Wong or of any other person. I will summarise the facts and circumstances that I have taken into account in coming to this conclusion.

· Peter Pham was interested in knowing how cigarettes might be smuggled into Australia around January 2000. He raised this topic with Mr Merriman in Linda Pham’s presence.

· The creation of the British American Tobacco document on a computer in the Pham family home in mid October 2000 points to the interest in smuggling cigarettes being revived at around that time. In light of the contents of the document it is significant that the cigarettes in each consignment comprised Winfield “red” and “blue” and that the proportion of “blue” was significantly greater than that of “red”.

· Yoshino consigned goods to Australia on only three occasions over a five-year period. In each case the consignment was stated to be of 480 packages of gyprock. One consignment was to Intrax and the other two consignments were to Outrax. The similarity in the names is unlikely to be a coincidence. The consignment to Intrax and the two consignments to Outrax were accompanied by the same delivery instructions. The Intrax consignment was cleared through Customs by T & D Customs. The receipt for unloading the Intrax container was located at the family home.

· The timing of the importation of the Intrax consignment is consistent (when taken with the other matters) with it being a practice run prior to the importation of the container containing the contraband cigarettes.

· Neither Intrax nor Outrax appear to have engaged in any business activity other than as the consignee of goods imported into Australia from Yoshino. Each business name was registered shortly prior to the despatch of a consignment by Yoshino.

· It does not appear than documents relating to Intrax were located during the search of the premises which were stated to be its principal place of business. Linda Pham’s mobile telephone number was given as the contact telephone number for Intrax.

· No Outrax documents were located at the premises which were stated to be its principal place of business. It did not have a telephone service in the name Outrax.

· The appearance of the application to register the business name Intrax and the finding of the practice “Tony” signatures at the family home together with the appearance of the application to register the business name Outrax and the finding of the blank application signed by Simon Wong at the family home are consistent with Peter and Linda Pham being the moving force behind the registration of both names.

· The telephone calls between the service registered in Peter Pham’s name and Yoshino in December 2000 and January 2001 are consistent with Peter and or Linda Pham being involved in the arrangements for the importation of the consignment of gyprock to Intrax.

· The finding of the original bills of lading and other shipping documents relating to all three consignments shipped to Australia by Yoshino in the family home illustrates the common link between the Intrax and Outrax importations being Peter and Linda Pham.

· The attempt to conceal the existence of the shipping documents and the Intrax and Outrax business name documents is significant in considering proof of Linda Pham’s knowledge. She had returned to the family home at the time of these events. It is inherently implausible that her young daughter and the elderly woman made attempts to conceal documents during the search for reasons of their own.

· Linda Pham’s role in arranging with Silver State for the first and second container to be cleared through customs.

· Peter and Linda Pham owned the warehouse premises. There is no evidence that the premises, or any part of them, were rented to Simon Wong or to any other person. Peter Pham had access to the warehouse premises on 2 February. He opened the warehouse and the container.

· At the time the customs officers entered the warehouse premises the unmarked cardboard shippers containing the cigarettes had been stacked on the forklift and were ready to be unloaded. It was apparent that the shippers were not packages of gyprock.

· The circumstance that the container was unloaded within view of a public street does not raise a doubt in my mind concerning the knowledge of Peter or Linda Pham of the contents of it. The container had been cleared through Customs. There was no reason for Peter or Linda Pham to fear that the container and the warehouse premises were under observation. The sight was an unremarkable one: a shipping container being unloaded in front of a warehouse. Neither passers-by nor Mr Crittle or Mr Mansour might be expected to know that duty had not been paid on the goods in unmarked boxes.

98 I am satisfied beyond reasonable doubt that the intention of Peter and Linda Pham, in importing the first and the second container into Australia knowing that in each case that the shippers of cigarettes were concealed inside it, was to defraud the revenue.

99 Turning to the offence of evading the payment of duty, I am satisfied beyond reasonable doubt that Peter and Linda Pham were the importers of the first container and that they were persons with control of, or power of disposition over, the goods in it. Each was an “owner” of the goods in the first container for the purposes of the Act and each was under a legal obligation to pay customs duty on the cigarettes. I am satisfied beyond reasonable doubt that Peter and Linda Pham deliberately failed to pay duty in circumstances in which that failure was relevantly blameworthy and accordingly I am satisfied that each evaded the payment of duty.

100 The offence charged against each of the defendants under s 234(1)(d) that he/she knowingly or recklessly made a statement to an officer that is false or misleading in a material particular, relates to the declaration on the Entry for Home Consumption, that the first shipping container contained 480 packages of gyprock in circumstances in which it contained 480 packages of gyprock and 280 shippers of cigarettes. Counsel for the defendants did not submit that the declaration was not false or misleading in a material particular, and I am satisfied beyond reasonable doubt that it was.

101 The statement was made in a document that was electronically lodged. T & D Customs acting as agents for Silver State Agencies who, in turn, acted on the instructions of Linda Pham, lodged the entry. A person who gives instructions to an innocent agent to lodge a document that is false or misleading in a material particular is himself or herself guilty of the offence: White v Ridley (1978) 140 CLR 342 per Gibbs J at 347. I am satisfied beyond reasonable doubt that the instructions given by Linda Pham were false in a material particular, in that they did not disclose the presence of the 210 shippers of cigarettes in the container, and that the declaration was known by Peter and Linda Pham to be false at the time the instructions were given to Silver State Agencies. I am satisfied beyond reasonable doubt that the instructions were given by Linda Pham with the knowledge of Peter Pham as part of their joint enterprise to import the cigarettes into Australia without payment of Customs duty.

102 For these reasons I am satisfied beyond reasonable doubt that Customs has established the guilt of Peter and Linda Pham of each of the offences that it charges. Customs seeks a number of consequential orders. The parties were agreed that, in the event I was satisfied that Customs had established its case in respect of one or more of the offences, I should deal with the question of the penalties to be imposed and any other consequential orders on another occasion.

ORDERS

1. Vinh Phat Pham (also known at Peter Pham) and Sung Chau Pham (also known as Linda Pham) are each convicted of an offence that he/she did on or about 25 January 2001 at Sydney in the State of New South Wales, smuggle a quantity of cigarettes, namely 2,098,175 cigarette sticks, into Australia contrary to s 233(1)(a) of the Customs Act 1901 (Cth);

2. That Vinh Phat Pham (also known as Peter Pham) and Sung Chau Pham (also known as Linda Pham) are each convicted of an offence that on or about 22 January 2001 at Sydney in the State of New South Wales he/she did evade payment of duty which was payable in respect of the importation into Australia of 2,098,175 cigarette sticks contrary to s 234(1)(a) of the Customs Act 1901 (Cth).

3. Vinh Phat Pham (also known as Peter Pham) and Sung Chau Pham (also known as Linda Pham) are each convicted of an offence that on or about 22 January 2001 at Sydney in the State of New South Wales, he/she did knowingly or recklessly make a statement to a Customs officer that was false or misleading in a material particular by not declaring the goods contained in a shipping container in Entry for Home Consumption Number 1S.1019.0909P, contained a quantity of cigarettes, namely 2,098,175 cigarette sticks.

4. Vinh Phat Pham (also known as Peter Pham) and Sung Chau Pham (also known as Linda Pham) are each convicted of an offence that on or about 30 January 2001 at Sydney in the State of New South Wales he/she did smuggle cigarettes, namely, 2,099,750 cigarette sticks into Australia contrary to s 233(1)(a) of the Customs Act 1901 (Cth).

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