CEO of Customs v Powell - [2007] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

CEO of Customs v Powell [2007] QCA 106

PARTIES:

CHIEF EXECUTIVE OFFICER OF CUSTOMS (respondent/applicant/appellant)
v
POWELL, Timothy Ian Charles
(appellant/respondent)

FILE NO/S:

CA No 210 of 2006
DC No 110 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2006

JUDGES:

McMurdo P, Holmes JA and Chesterman J
Judgment of the Court

ORDER:

1. Application for leave to appeal granted
2. The appeal is allowed
3. The orders of the District Court made on 28 June 2006 are set aside
4. Instead it is ordered that the appeal to that Court be dismissed

CATCHWORDS:

TAXES AND DUTIES – CUSTOMS AND EXCISE – JURISDICTION AND PROCEDURE IN CUSTOMS PROSECUTIONS – HOW INSTITUTED AND IN GENERAL – where the respondent was convicted in the Magistrates Court of importing a prohibited import (a breech bolt) contrary to s 233(1)(b) of the Customs Act 1901 (Cth) – where the respondent successfully appealed to the District Court under s 222 Justices Act 1886 (Qld) – whether the learned District Court judge erred in finding because of s 247 Customs Act 1901 (Cth) that the proceedings were wrongly brought by way of complaint and summons under the Justices Act and ought to have been brought by claim under the Uniform Civil Procedure Rules 1999 (Qld).

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the magistrate at first instance reserved decision for almost three months – where reasons when delivered orally comprised 15 lines of transcript – whether District Court judge erred in determining magistrates reasons were so seriously inadequate as to amount to an error of law

TAXES AND DUTIES – CUSTOMS AND EXCISE – CUSTOMS REGULATIONS AND BY-LAWS – where breach bolt capable of inclusion within two items of Schedule 6 to the Customs (Prohibited Imports) Regulations 1956 (Cth) – where prohibited import only in respect of one item – whether the District Court judge erred in finding that the breech bolt the subject of the charge was not a prohibited import because it fell within both items

Acts Interpretation Act 1901 (Cth) s 26(d)
Appeal Costs Fund Act 1973 (Qld)
Customs Act 1901 (Cth), s 233(1)(b), s 245, s 247, s 248
Customs and Excise Amendment Act 1982 (Cth)
Customs (Prohibited Imports) Regulation 1956 (Cth)
District Court of Queensland Act 1967 (Qld)
Justices Act 1886 (Qld), s 222

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161, considered
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40, considered
Martin v Rowling & Anor [2005] QCA 128; Appeal No 5840 of 2005, 27 April 2005, considered
Pettitt v Dunkley [1971] 1 NSWLR 376, considered
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194…

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: [2007] QCA 106
Decision Date: 30 March 2007

CaseChat Overview and Summary

The case of CEO of Customs v Powell involved a dispute over the importation of a breech bolt, which was alleged to be a prohibited import under the Customs Act 1901 (Cth). The respondent was initially convicted in the Magistrates Court, but subsequently appealed to the District Court, where the appeal was allowed. The CEO of Customs then sought leave to appeal to the higher court. The central issues for the court were whether the proceedings against the respondent were correctly instituted and if the District Court judge made any errors in law in allowing the appeal. Additionally, the court considered whether the reasons given by the magistrate were adequate and whether the District Court judge correctly interpreted the classification of the breech bolt as a prohibited import.

The court examined the jurisdictional and procedural aspects of the customs prosecution and determined that the proceedings should have been initiated by a claim under the Uniform Civil Procedure Rules 1999 (Qld) rather than by complaint and summons under the Justices Act 1886 (Qld). The court found that the District Court judge did not err in this regard. Furthermore, the court assessed the sufficiency of the magistrate's reasons for the original decision and concluded that while the reasons were brief, they were not so inadequate as to constitute an error of law. Regarding the classification of the breech bolt, the court found that the District Court judge erred in determining that the breech bolt was not a prohibited import, as it fell within two items of Schedule 6 to the Customs (Prohibited Imports) Regulations 1956 (Cth).

The court granted the application for leave to appeal and allowed the appeal. It set aside the orders of the District Court made on 28 June 2006 and dismissed the appeal to that court. The respondent's conviction in the Magistrates Court was thus reinstated. The court's decision underscored the importance of following the correct procedural steps in customs prosecutions and highlighted the need for adequate reasons in judicial decisions.

Orders

Orders of the court

1. Application for leave to appeal granted

2. The appeal is allowed

3. The orders of the District Court made on 28 June 2006 are set aside

4. Instead it is ordered that the appeal to that Court be dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CEO of Customs v Powell [2007] QCA 106
PARTIES:	CHIEF EXECUTIVE OFFICER OF CUSTOMS (respondent/applicant/appellant) v POWELL, Timothy Ian Charles (appellant/respondent)
FILE NO/S:	CA No 210 of 2006 DC No 110 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2006
JUDGES:	McMurdo P, Holmes JA and Chesterman J Judgment of the Court
ORDER:	1. Application for leave to appeal granted 2. The appeal is allowed 3. The orders of the District Court made on 28 June 2006 are set aside 4. Instead it is ordered that the appeal to that Court be dismissed
CATCHWORDS:	TAXES AND DUTIES – CUSTOMS AND EXCISE – JURISDICTION AND PROCEDURE IN CUSTOMS PROSECUTIONS – HOW INSTITUTED AND IN GENERAL – where the respondent was convicted in the Magistrates Court of importing a prohibited import (a breech bolt) contrary to s 233(1)(b) of the Customs Act 1901 (Cth) – where the respondent successfully appealed to the District Court under s 222 Justices Act 1886 (Qld) – whether the learned District Court judge erred in finding because of s 247 Customs Act 1901 (Cth) that the proceedings were wrongly brought by way of complaint and summons under the Justices Act and ought to have been brought by claim under the Uniform Civil Procedure Rules 1999 (Qld). APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the magistrate at first instance reserved decision for almost three months – where reasons when delivered orally comprised 15 lines of transcript – whether District Court judge erred in determining magistrates reasons were so seriously inadequate as to amount to an error of law TAXES AND DUTIES – CUSTOMS AND EXCISE – CUSTOMS REGULATIONS AND BY-LAWS – where breach bolt capable of inclusion within two items of Schedule 6 to the Customs (Prohibited Imports) Regulations 1956 (Cth) – where prohibited import only in respect of one item – whether the District Court judge erred in finding that the breech bolt the subject of the charge was not a prohibited import because it fell within both items Acts Interpretation Act 1901 (Cth) s 26(d) Appeal Costs Fund Act 1973 (Qld) Customs Act 1901 (Cth), s 233(1)(b), s 245, s 247, s 248 Customs and Excise Amendment Act 1982 (Cth) Customs (Prohibited Imports) Regulation 1956 (Cth) District Court of Queensland Act 1967 (Qld) Justices Act 1886 (Qld), s 222 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161, considered Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40, considered Martin v Rowling & Anor [2005] QCA 128; Appeal No 5840 of 2005, 27 April 2005, considered Pettitt v Dunkley [1971] 1 NSWLR 376, considered Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194…