CEO of Customs v Pham - [2003] NSWSC 971

CITATION: CEO OF CUSTOMS v. PHAM & ANOR [2003] NSWSC 971

HEARING DATE(S): Tuesday 21 October 2003

JUDGMENT DATE:
21 October 2003

JURISDICTION:
Civil

JUDGMENT OF: Greg James J at 1

DECISION: Motion dismissed. I order the defendant to pay the plaintiff's costs of the motion. Stand over to the status conference list on 2 December 2003

CATCHWORDS: Customs prosecution - proceeding to recover pecuniary penalties - offences against laws of the Commonwealth - whether should be commenced by indictment - whether trial by jury constitutionally necessary - whether jury trial should be ordered in discretion - application dismissed.

LEGISLATION CITED: Customs Act 1901 (Cth)
Judiciary Act 1903 (Cth)
Supreme Court Act 1970
Courts Legislation Amendment (Civil Juries) Act 2001
Evidence Act 1995
Jury Act 1977

CASES CITED: CEO of Customs v. Labrador Liquor Wholesale Pty. Limited [2003] HCA 49
The Queen v. Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556
Kinswell (1985) 159 CLR 264
re Colina; ex parte Torney (1999) 200 CLR 386
Comptroller-General of Customs v. D'Aquino Brothers Pty. Limited (1996) 135 ALR 649
Evans v. Lynch [1984] 3 NSWLR 567

PARTIES :
CHIEF EXECUTIVE OFFICER OF CUSTOMS v.
PHAM, Vinh Phat & ANOR

FILE NUMBER(S): SC No. 20979 of 2001

COUNSEL: Plaintiff: R. Bromwich
Defendant: M. Robinson/R.Nair

SOLICITORS: Plaintiff: Australian Government Solicitor
Defendant: Burn & Swift

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

TUESDAY 21 OCTOBER 2003

No. 20979 of 2001

CHIEF EXECUTIVE OFFICER OF CUSTOMS v. VINH PHAT PHAM & ANOR
JUDGMENT

1 HIS HONOUR: These proceedings have been commenced by statement of claim seeking penalties against the defendants for asserted breaches of provisions of the Customs Act 1901 (the Act) whereby the plaintiff claims the defendants are liable to conviction and serious punishment, in particular by way of the imposition of pecuniary penalties. Those penalties, I am informed, by reason of the application of certain provisions of Part XIV of the Act might total as high as $7 million.

2 When the proceedings were before me last year, an amended notice of motion was filed in Court dated 16 October and filed on 17 October 2002. On that occasion I was informed that it would be sought to remove the proceedings to the High Court for hearing as certain constitutional questions would be raised. The necessary notice had been given to the Attorneys-General of the States and the Territories by notices under s.78B of the Judiciary Act. The notice is to be found annexed to the affidavit of Ms. Dianne Burn sworn 17 October 2003. The High Court refused to remove the proceedings. They are being continued in this court. It has thus fallen to me to determine whether the orders sought in the motion should be granted.

3 The motion seeks that, by paragraph one, questions set out in it be decided separately before any trial in the proceedings. Paragraphs seven, eight and 10 of the motion are not pressed. Paragraph seven is…

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: [2003] NSWSC 971
Decision Date: 21 October 2003

CaseChat Overview and Summary

The case of CEO of Customs v Pham involved a dispute regarding the procedural aspects of a prosecution to recover pecuniary penalties for alleged offences against the laws of the Commonwealth. The Commonwealth sought to recover pecuniary penalties from Pham, and the central legal issues revolved around the appropriate manner of initiating such a proceeding. Specifically, the court had to determine whether the proceeding should have been commenced by indictment, whether a trial by jury was constitutionally necessary, and whether a jury trial should be ordered in the court's discretion.

The court thoroughly examined the constitutional and statutory frameworks that govern the manner in which proceedings for the recovery of pecuniary penalties are to be conducted. It held that the proceeding in question was not constitutionally required to be by indictment and that there was no constitutional mandate for a trial by jury in such cases. Furthermore, the court concluded that, in the exercise of its discretion, a jury trial was not warranted given the nature of the proceeding. The court's reasoning was grounded in a detailed analysis of relevant legislative provisions and case law, which underscored the flexibility of the legal system in accommodating the specific circumstances of each case.

In light of the above findings, the application for a jury trial was dismissed. The court emphasised that the decision was consistent with the principles of procedural fairness and the practicalities of administering justice in the context of pecuniary penalty proceedings. The court's ruling provided clarity on the procedural requirements for such cases, reinforcing the balance between the rights of the accused and the efficiency of the legal process.

Orders