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 /…

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: [2006] NSWSC 1011
Decision Date: 4 October 2006

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal brought by the Commonwealth against a decision of the Administrative Appeals Tribunal (AAT). The appellant, the Commonwealth Executive Officer of Customs, sought to overturn the AAT's decision to dismiss a prosecution brought against the respondent, Pham. Pham was accused of contravening customs law by knowingly making a false declaration in an attempt to evade payment of duty. The primary judge found that Pham had not intentionally made a false declaration, and dismissed the charge.

The central issue before the court was whether Pham knowingly made a false declaration with the intention to evade duty. The court was required to examine the evidence and determine whether the primary judge's findings were correct, and if not, what the appropriate outcome should be. The court also needed to consider the correct interpretation of the relevant statutory provisions and case law.

The court held that the primary judge erred in finding that Pham did not knowingly make a false declaration. The court found that Pham had deliberately made a false declaration, and that he did so with the intention to evade payment of duty. The court emphasised that Pham's actions were deliberate and calculated, and that he had taken steps to conceal the true nature of the goods he was importing. The court also noted that Pham had a history of similar conduct, which demonstrated a pattern of behaviour that was inconsistent with innocent or accidental conduct. The court found that the primary judge had failed to properly consider this evidence, and that the correct outcome was to overturn the AAT's decision and reinstate the prosecution against Pham. The court remitted the matter to the AAT for further consideration in light of the court's findings.

Orders