Chief Executive Officer of Customs v Amron
[2001] VSC 373
•9 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 7159 of 1999
| CHIEF EXECUTIVE OFFICER OF CUSTOMS | Plaintiff |
| v | |
| ALEX AMRON (also known as Aly Astta) | Defendant |
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JUDGE: | McDonald J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 19 September 2001 | |
DATE OF JUDGMENT: | 9 October 2001 | |
CASE MAY BE CITED AS: | Chief Executive Officer of Customs v Amron | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 373 | |
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Customs and Excise, smuggling, knowingly making a false statement to an officer in an Entry for Home Consumption; averment of fact as distinguished from averment of intent; mental element of offences charged; knowingly making a statement in an Entry for Home Consumption that is false or misleading in a material particular; standard of proof, lie not shown to relate to material issue; answers to interrogatories, use in trial.
Customs Act 1901, ss. 233(1)(a); 234(1)(d)(i); 255(1)(4)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms H. Riley | Australian Government Solicitor |
| For the Defendant | No Appearance |
HIS HONOUR:
The present proceeding before the Court, in its Civil jurisdiction, is in the nature of a customs prosecution under the provisions of the Customs Act 1901 (Cth) in which the plaintiff seeks orders for the conviction of the defendant for offences alleged to have been committed against the Act and for the recovery of pecuniary penalties. As authorised by s. 245 of the Act the prosecution is instituted by the Chief Executive Officer of Customs in the name of that office. As provided by s. 247 of the Act the proceedings are brought in accordance with the practice and procedure of the court in civil cases. Accordingly the proceedings were commenced by writ to which there was annexed the plaintiff’s Statement of Claim.
As admitted by the defendant in his amended defence filed in the proceedings the defendant is and was at all material times known as Alex Amron, however, at all material times the defendant, under the name of Aly Astta, was the proprietor of the registered business name “Diamond Corner”. The business conducted by the defendant also carried on business in the name of “Diamond’s Corner”.
By his Statement of Claim the plaintiff alleged:
1.That on or about 9 February 1999 the defendant imported or caused to be imported into Australia, by sea, from Indonesia 250 packages of toilet tissue and 26 packages containing 850 cartons of cigarettes of which each carton contained 200 cigarettes.
2.That on or about 9 February 1999 the defendant’s customs agent, Clemenger International Freight Pty Ltd, made or gave or caused to be made or given to an officer of customs an Entry for Home Consumption in respect of that importation for Diamonds Corner which was given the lodgment number, No. 2M90361377E.
3.That the Entry contains statements which were false to the knowledge of the defendant, namely
(a)the importation comprised packages of plastic toys;
(b)the customs value of the importation was A$6,324.69;
(c)the custom’s duty payable in respect of the importation was A$316.22;
4.That in fact the importation comprised 250 packages containing toilet tissue and 26 packages containing a total of 850 cigarette cartons each of which carton contained 200 cigarettes and that the defendant deliberately omitted from the Entry a statement that the importation contained such cigarettes.
5.That as stated in the Entry the customs value of the toilet tissue was A$4,738.30 and that the duty payable on the toilet tissue was A$236.91.
6.That the custom’s duty payable on the cigarettes was A$37,632.81.
7.That the total custom’s duty payable on the importation was A$37,869.72 [which is the total of the duty payable on the toilet tissues - A$236.91 and the cigarettes – A$37,632.81].
8.That the defendant paid or caused to be paid duty in the sum of A$316.22 which was less duty in respect of the importation than ought to have been paid.
9.That such conduct of the defendant was engaged in by him with intent to evade the payment of custom’s duty which was payable and to defraud the revenue in that he intentionally evaded custom’s duty in the sum of $37,632.81 (to which sum I shall return).
The plaintiff further alleged that in the premises the defendant –
(a) smuggled cigarettes in contravention of s. 233(1)(a) of the Act;
(b)evaded payment of duty which was payable on the cigarettes comprising the importation, in contravention of s. 234(1)(a) of the Act;
(c)knowingly made statements to an officer in the Entry which were false or misleading in a material particular in contravention of s. 234(1)(d)(i) of the Act;
(d)in the alternative, to paragraph (c) recklessly made statements to an officer in the Entry which were false or misleading in a material particular in contravention of s. 234(1)(d)(i) of the Act;
(e)knowingly omitted from a statement to an officer in the Entry a matter or thing without which the statement was misleading in a material particular in contravention of s. 234(1)(d)(ii) of the Act;
(f)in the alternative, to paragraph (e) recklessly omitted from a statement to an officer in the Entry a matter or thing without which the statement was misleading in a material particular in contravention of s. 234(1)(d)(ii) of the Act.
By paragraph 16 of his Statement of Claim the claim the plaintiff averred the allegations set out and pleaded in his Statement of Claim to which I have previously referred.
Although, subsequent to being served with the writ, the defendant appeared in the proceedings by solicitor and was represented by a solicitor until 7 September 2001, on that day with leave of the Court the solicitor for the defendant filed a notice of ceasing to act for the defendant. At the trial the defendant did not appear represented by a legal practitioner nor did he appear personally.
During the course of the trial counsel for the plaintiff informed the Court that the plaintiff sought to pursue and rely on the allegations made in the Statement of Claim that by the importation the defendant had smuggled the cigarettes in contravention of s. 233(1)(a) of the Act and that he knowingly had made statements to an officer in the Entry which were false or misleading in a material particular in contravention of s. 234(1)(d)(i) of the Act but that otherwise the plaintiff did not pursue his claim against the defendant for orders by way of conviction or for the recovery of pecuniary penalties as was further alleged by his Statement of Claim. The allegation of the plaintiff that the defendant knowingly made a statement to an officer in the Entry which was false or misleading was based on the allegation that the Entry contained a statement that the importation contained plastic toy[s] with a custom’s duty of $79.31, when their importation contained no toys and that the Entry contained no statement that the importation included the cigarettes and that the custom’s duty payable on the cigarettes was A$37,632.81.
Pursuant to s. 4 of the Act, “smuggling” is defined to mean – “any importation, introduction, or exportation or attempted importation, introduction or exportation of goods with intent to defraud the revenue”. As I have referred to, by his Statement of Claim, the plaintiff averred to the allegations therein stated. Pursuant to s. 255 of the Act as is relevant it is provided –
“(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.”
The proceedings were not for an indictable offence nor were the proceedings for an offence directly punishable by imprisonment.
The offence of smuggling is that provided by s. 233(1)(a) of the Act which provides –
“(1) A person shall not:
(a) smuggle any goods,”
The further offence prosecuted at trial against the defendant was that provided by s. 234(1)(d)(i) of the Act which provides –
“(1) A person shall not:
(d) knowingly…
(i)make a statement to an officer that is false or misleading in a material particular.”
In the course of her opening to the Court, counsel for the plaintiff in dealing with the averment of the plaintiff as contained in the Statement of Claim and the provisions of s. 255 of the Act, to which I had referred, drew to the attention of the Court the decision of Fullagar J in Jackson v Butterworth[1]. After referring to part of the decision of his Honour she informed the Court in substance that the plaintiff did not rely on the averment against the defendant insofar as the allegation included the mental element of intent or that the defendant did something knowingly.
[1](1946) VLR 330.
In Jackson v Butterworth Fullagar J had before him a “taxation prosecution” brought pursuant to the Income Tax Assessment Act 1936 (Cth) and in particular under s. 230 which provided, so far as was material, that any person who “in any return knowingly and wilfully understates the amount of any income” shall be guilty of an offence. At the time relevant to that trial s. 243 of the Income Tax Assessment Act 1936 was in similar terms to s. 255 of the Customs Act to which I have referred. Section 243(1) of the Income Tax Assessment Act provided –
“(1)In any taxation prosecution, every averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter averred.”
By sub-s. 4 it was provided:
“(4) This section shall not apply to:
(a) an averment of the intent of the defendant;
(b)proceedings for an indictable offence or an offence directly punishable by imprisonment.”
In that proceeding the allegation against the defendant was that he had in his return knowingly and wilfully understated the amount of his income and that thereby he was guilty of an offence under s. 230 of the Income Tax Assessment Act 1936.
At p. 33 of his judgment when considering the provisions of s. 243 of the Income Tax Assessment Act, Fullagar J said:
“Sub-section (4) provides that the section shall not apply to an averment of the intent of the defendant. I think, and I do not know that this was disputed before me, that the work ‘intent’ in the sub-section should receive a wide meaning and should be regarded as referring to any mental element forming an essential part of the Crown case. In the present case the omission of income from the two returns is not disputed, the contest being whether that income was ‘knowingly and wilfully’ omitted.”
It follows from that said by his Honour that the provisions of s. 243 of the Income Tax Assessment Act did not assist the plaintiff in establishing the necessary element of the offence that in his return the defendant, “knowingly and wilfully” understated the amount of his income. It is to be observed that the provisions of s. 243(1) and (4) of the Income Tax Assessment Act, as it then was, were in like terms to that provided by s. 255(1) and (4) of the Customs Act as relevant to these proceedings.
On the second day of the trial, it being adjourned on the first day principally because of the unavailability of a witness that day, counsel for the plaintiff after oral evidence had concluded, cited to the Court the decision of Vincent J in Gallagher v Cendaku[2] and the decision of Harris J in Goldwater v Rose[3] and later, in reference to the same, sought to rely on, as a matter of evidence, the averments of the plaintiff as contained in the Statement of Claim, that the statements in the Entry that the importation contained packages of plastic toys, that the customs value of the importation was A$6,324.69, that the total custom’s duty payable in respect of the importation was A$316.22 were false and false to the knowledge of the defendant and that the defendant deliberately omitted from the Entry a statement that the importation contained the cigarettes as referred to in the Statement of Claim.
[2](1988) VR 731.
[3](Unreported, 22 March 1977).
Before turning to consider these two cases it should be noted that at the time relevant to the facts in each of Gallagher v Cendaku and Goldwater v Rose, that the provisions concerning the offence of “smuggling” goods was in the same terms as is presently relevant to that offence alleged against the defendant in these proceedings. However s. 234(1)(d) and (f) of the Customs Act then provided –
“(1) No person shall -
(d) make any entry which is false in any particular;
(e)make any declaration or document produced to an officer any statement which is untrue in any particular or produce or deliver to an officer any declaration or document containing any such statement.”
By s. 23 of the Customs and Excise Legislation (Amendment) Act (No. 2) – No 24, 1989 s. 234 of the Customs Act was amended by omitting paragraphs (1)(d), (e) and (f) thereof and substituting the paragraph therein set out with the effect that s. 234(1)(d) as amended provided that as is relevant to the present proceedings:
“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.”
In Goldwater v Rose the proceeding before Harris J was the return of an order nisi to review a decision of a Magistrates’ Court before which the defendant had been prosecuted by the plaintiff, the Collector of Customs, alleging that the defendant had committed an offence in that he acted in breach of s. 234(e) of the Customs Act. The information by its terms in part stated:
“[That] pursuant to s. 255 of the Customs Act 1901-1975 [the plaintiff] avers that the said defendant between the 20th day of March 1971 and 14th day of April 1971 at Melbourne in the said State did contrary to s. 234(e) of the said Act make in a document, to wit, a claim for Drawback, produced to an officer a statement, to wit, that the goods will not be relanded in Australia’ which was untrue in a particular and the informant further avers –
(1) that the said document was produced to an officer of customs;
(2)that the defendant knew that the said goods were on his instructions to be relanded in Australia.”
At p.13 of his judgment Harris J said:
“… the second averment is that the defendant knew that the goods were on his instructions to be relanded in Australia. If the informant is entitled to rely upon that as an averment of fact, then it is a fact from which the court could properly conclude that the statement in the claim that the goods would not be relanded in Australia was untrue.”
After referring to the provisions of s. 255(4)(a) of the Customs Act and submissions made by counsel on behalf of the defendant. His Honour at p. 13-14 said –
“In my opinion, the averment that the defendant knew that the goods were to be relanded in Australia is an averment of fact. It is not an averment of intent; it is an averment of what was the fact as to the state of the defendant’s knowledge. It adds the further fact that the defendant had given instructions for the relanding of the goods in Australia. The matter might have been stated with greater particularity, but that is not the point. In my opinion, it is an averment of fact from which the court could conclude that the statement in the claim for drawback was untrue where it was stated that the goods would not be relanded in Australia. Consequently I am of the view that the informant was entitled to rely upon both averments and that those averments and the documentary evidence established a prima facie case.”
That which was required to be established by the plaintiff in that case was that in the document produced to the officer there was a statement which was in fact untrue. It was not necessary for the plaintiff to establish that the defendant knew that the statement was untrue or that he “knowingly” made a statement that was untrue. The fact that the defendant knew, at the relevant time that the goods were to be relanded in Australia was a fact relevant to the issue of whether the statement was in fact untrue.
Before the amendment to the Customs Act on 1 July 1989 by Act 24 of 1989 it was held that mens rea was not an element of the offence created by s. 234(1)(d) of the Act; Sternberg v R[4], Davidson v Watson[5], Stitt v CBI Constructions Pty Ltd[6], Defiance Enterprises Pty Ltd v Collector of Customs[7].
[4](1953) 88 CLR 646.
[5](1953) 28 ALJR 63.
[6](1990) 93 ALR 325.
[7](1990) 96 ALR 697.
However, since those amendments the offence created by s. 234(1)(d)(i) of the Act is that a person shall not “knowingly” make a statement to an officer that is false or misleading in a material particular. “Knowingly” engaging in conduct proscribed by statute imports mens rea, and it is an element of the offence that must be established before it can be determined that a person has committed the offence of “knowingly” engaging in the proscribed conduct.
In Gallagher v Cendaku[8], the proceedings before Vincent J were the return of an order nisi to review a decision of a Stipendiary Magistrate who had determined that there was no case to answer on charges for offences under the Customs Act including the offence created by s. 233(1)(a), “smuggling” and s. 234(1)(d) of the Act before being amended. The offences alleged, involved the importation of a number of motor vehicles, it being alleged by the prosecution that the value of the vehicles had been greatly understated. In support of its case the prosecution relied heavily on averments. In relation to the first motor car the subject of the prosecution the averments relied on by the prosecution included averments that the first Entry contained a statement that the sum of the actual money price paid for the first motor car and all charges for placing the first motor car “free on board”, was a sum specified, that the statement was false, that the statement was made by the defendant and that the statement was false to the knowledge of the defendant. At the close of the prosecution case, in a response to a submission made on behalf of the respondent, the Magistrate had ruled that there was no case to answer on the charges for offences under the Act. It was that determination that was the subject of the review for Vincent J. As appears from his Honour’s judgment at p. 744, relevant to the charge of smuggling, Senior Counsel for the applicant (the prosecutor) submitted that it was open, on the basis of the evidence, including the “averment of the making of a knowingly false statement as to the price of each vehicle, for the Magistrate to make the necessary finding for conviction of the existence of an intention on the part of the respondent to defraud the revenue”. In holding that the Magistrate was in error in determining that there was no case for the respondent to answer with respect to the charge of smuggling contrary to s. 233(1)(a) of the Act, his Honour at p. 744 said –
“A clear but possibly difficult distinction in some situations, can be drawn between an averment of the fact of the possession of knowledge by a person which is admissible, and one of intention which is not. Certainly evidence of knowledge may provide a very stable platform on which to base the inference of intention. It does appear to me that it was open to the Magistrate in the present matter to make a finding adverse to the respondent on this issue dependent upon the view which he took of the evidence before him.”
As to the alleged offence of making an Entry that was false, it appears from his Honour’s judgment that the prosecution had contended and averred that the Entry was false. His Honour held that there was evidence before the Magistrate sufficient that the respondent had a case to answer on that charge. This offence, with which his Honour was concerned, did not require proof that the defendant “knowingly” made a false entry.
[8][1988] VR 731.
In my view when consideration is had to the provisions of s. 234(1)(4) of the Income Tax Assessment Act, with which Fullagar J was concerned in Jackson v Butterworth and the provisions of s. 255(1) and (4) of the Customs Act, that said by his Honour, that “intent” in s. 234(4) of the Income Tax Assessment Act should “receive a wide meaning” and should be regarded as “referring to any mental element forming an essential part of the Crown case” has direct application to s. 255(4) of the Customs Act. I propose to apply that which was said by his Honour when considering how and to what extent the averments made by the plaintiff in this case may be used as prima facie evidence of matters necessary to be proved in order to establish that the defendant has committed the offences pursued in this case. In my view the decisions in Goldwater v Rose[9] and Gallagher v Cendaku[10] do not qualify or conflict with that said by Fullagar J in Jackson v Butterworth[11].
[9](1946) VLR 330.
[10]Unreported, 22 March 1977.
[11](1988) VR 731.
In these proceedings the averments relied on by the plaintiff, that the statements made in the Entry that the importation comprised packages of plastic toys, that the customer’s value of the importation was A$6,324.69 and that the total custom’s duty payable in respect of the importation was A$316.22, were false and false to the knowledge of the defendant and that the defendant deliberately omitted from the Entry a statement that the importation contained cigarettes is an averment of fact admissible and able to be relied on by the plaintiff as evidence relevant to the charge of smuggling. The fact as averred that such statements in the Entry made by the defendant were false and false to the knowledge of the defendant is a relevant matter of fact and relevant to the matter which must be proved by the plaintiff with respect to the offence of smuggling that the importation was made by the defendant with the intent to defraud the revenue. Similarly, the averment that the defendant deliberately omitted from the Entry, a statement that the importation contained the cigarettes previously referred to, is an averment of fact relevant to the issue as to whether the importation was made with intent to defraud the revenue. However, when considering the charge that the defendant “knowingly” made a statement to an officer which was false or misleading in a material particular, the averment that the Entry was false in that it contained statements that the importation contains plastic toys, that the customs value of the importation was $6,324.69 and that the total customs payable on the importation was $316.22 are averments of fact which are able to be relied on by the plaintiff as relevant to that charge. However, the averment that the defendant knew that the statements of fact were false cannot be relied on with respect to such charge as that averment is an averment of the mental element or state of mind of the defendant which must be proved by the plaintiff in order to establish that the defendant committed the offence provided by s. 234(1)(d)(i) of the Customs Act. Similarly the averment that the defendant deliberately omitted from the Entry a statement that the importation contained the cigarettes alleged is not able to be relied on when considering the charge brought under this provision of the Customs Act as such averment which alleges the mental element of the defendant which must be proved, being that he deliberately omitted stating a matter thereby causing that stated to be false or misleading to the knowledge of the defendant.
Before proceeding further it is appropriate at this point to deal with the averment made by the plaintiff as to the amount of the custom’s duty not paid by the defendant. It was the plaintiff’s case that although the importation contained the toilet tissue stated in the Entry, it did not contain plastic toys stated in the Entry but rather it contained the cigarettes alleged. It is averred by the plaintiff that the custom’s duty payable on the toilet tissue was A$236.91 and that the custom’s duty payable on the cigarettes imported was A$37,632.81. It follows as a matter of calculation that the total duty payable on the importation as averred was A$37,869.72. The plaintiff further averred that the custom’s duty paid or caused to be paid by the defendant on the importation was $316.22. It follows that from these averments that by calculation the custom’s duty not paid by the defendant on the importation was A$37,553.50 and not A$37,632.81 as was separately averred by the plaintiff in the proceeding.
The plaintiff in prosecution of the case against the defendant did not rely alone on the averments made, but also relied on oral evidence which was led and documents which were tendered as part of the prosecution case.
Eric Mariani, a customs officer, on 9 February 1999, at the Customs Complex examined a shipping container numbered ZIMU2204152 on which there was an intact seal which seal bore the number 482648. Having broken the seal he opened and unpacked the container. He found that it contained 276 boxes all of which boxes were consigned to the one consignee which was Diamond’s Corner. He found that of the 276 boxes contained in the container 250 boxes contained toilet paper and 26 boxes contained cigarettes. On a number of the boxes which contained cigarettes there was printing on the outside of the same stating that the boxes contained cereal or biscuits. On other boxes which contained cigarettes there was no printing or writing on the outside which indicated the contents of the same. On opening these boxes it was found that on a number of the same the cardboard material comprising the box had been turned about and there was printed on the sides which had become the insides of the box the brand name of cigarettes which were in fact the brand of the cigarettes contained within the box. The cigarettes contained within these boxes were cigarettes the brands of which were well known and commonly sold on the Australian market. The boxes containing the cigarettes was found by Mariani to be packed about one third way into the container and were otherwise surrounded by boxes containing toilet tissue.
On 12 February 1999 customs officer, Mulvogue, executed a search warrant at the premises of Clemenger International Freight Pty Ltd which company is a customs broker and a freight forwarder. He took possession of a file which on its cover was written, “Client – Diamonds Creek” and “Container No. – ZIMU2254152”. Within the file was a document being an “Electronic Funds Transfer Receipt”. The document certified the transfer of A$349.42 which included duty in the sum of A$316.22. The document identified Clemenger International Freight Pty Ltd as the agent and the owner being Diamonds Corner. The document further identified a Bill of Lading by reference number J MEL-KMS 13533/H. The date of transfer receipt being the date when custom’s duty was paid, was 9 February 1999.
This file also contained an “Entry for Home Consumption” identifying the owner as “Diamonds Corner” and the agent being “Clemenger International Freight Pty Ltd”. The container number was that to which I have previously referred. The Bill of Lading was identified by number. The Entry stated that the container contain 276 packages and that they comprised toilet tissue and “plastic toy”. The supplier of the goods was stated to be PT Karya Mulia Loka Persada (which I shall hereafter refer to as “Persada”). The total duty payable was stated to be A$316.22. The Entry contained no statement that the importation included cigarettes or that it contained the cigarettes in the quantity averred by the plaintiff or of the value averred. Within that file there was further to be found an Ocean Bill of Lading numbered J/MEL-KMS 13533. It stated that the shipper was Persada that the consignee was Diamond’s Corner, that the port of loading was Jakarta, Indonesia and that the port of discharge was Melbourne, Australia. The Ocean Bill of Lading stated that the goods were 276 cartons of toilet tissue and toys being 250 cartons of toilet tissue and 26 cartons of toys. The container number and seal number stated on that document were that which were found and identified by Mariani. There was further contained within the file an invoice dated 12 January 1999 with the typed heading being that of Persada which was also stated in the document to be the shipper. The goods were described in the invoice were a total of 250 “cnts” of toilet tissue and 26 “cnts” of toys. Further, this file contained a packing declaration with the heading PT. Graha Kerindo Utama. In that document the container was identified by the container number and seal number being that to which I have previously referred. The declaration on that document was stated to be made on 17 January 1999.
Evidence was also given by customs officer, Sarkies. On 11 February 1999 he participated in the execution of a search warrant at the premises of Diamond Corner at 24-28 Berwick Road, Campbellfield. In the course of executing the warrant Sarkies found a number of documents relevant to these proceedings. One of the documents recovered was a sheet of note paper with the printed heading, “Puncak Inn Resort Hotel, your ultimate holiday retreat in West Java, Indonesia”. The document was further headed, “Guest Stationery”. On the front of that document in handwriting four lots of boxes were identified with what appears to be a value in rupees and an Australian dollar equivalent of “+/- A$6,976”. Below that writing there were further articles identified with the word, “Malboro” preceding them. Again there appeared a rupee value and an Australian dollar equivalent of “+/- A$3,056”. The amounts were totalled to be “A$10,032”. On the rear of that document again in handwriting there was written a number with the prefix “00161”.
There was further recovered by Sarkies a file with a facsimile coversheet addressed to Budi Harianto, Company UD Usaha Bersama. The document was dated 27 January 1999 and it was stated to be sent from Alex Amron. The facsimile message stated:
“Please be specific about the stock meaning the contents, amount of cartons and/or shippers as well as the price per item, I understand the price is Rp1,550,000/box and the minimum order is 20 boxes but please supply more information regarding the quantity involved in this document, thank you, yours sincerely Alex Amron.”
On that document there was written in handwriting.
“In future could you please not fax name of product. You can tell me on the phone instead, thank you, Alex”.
The other document contained in that file was a letter headed UD. Usaha Bersama with a fax imprint date of, “Jan 29 1999”. The letter on its face was signed by Budi Harianto and was addressed to Diamond’s Corner attention “Alex Amron”. By its contents the letter referred to the fax dated 27 January 1999 and stated,
“…we would like to inform you the specification is as follows:
¨a box contents 50 inner boxes
¨each inner box contents 10 packs
¨that means a box contents 500 packs
looking forward to your confirmation at once”
Sarkies further recovered a file which contained, inter alia, a copy of the aforesaid Ocean Bill of Lading. This file also contained a letter from Persada to Diamond’s Corner addressed “Dear Mr Alex”. The letter bore a facsimile date stamp “Jan 30 1999” and by its contents stated in part –
“For your information we have send you the documents (Original and copy BL invoice and Packing List. Please see attachment)”.
The file also contained what appears to be a pro-forma “packing declaration” which was incomplete but in part stated that the “packer/supplier letterhead” was to be provided. This file further contained a letter which was signed under the typed name “Alex Amron”. It bore a stamp, “faxed 3-2-99”. The letter was addressed to Persada and was dated 3/3/99. The letter stated –
“Dear Yenyen,
I have received your fax thank you, I have also received all documents you have sent, Including (original and copy of B/L copy invoice and packing list).
We further require from you a Packing Declaration, with your letterhead, being the packer or supplier on the top of the document. I have attached with this fax, a copy of what is required from you the packer of the shipment that has already been sent from Jakarta, so is it possible for you to send me a document stating how the shipment has been packed.
Ps: Could You Bring This To Your Attention As Soon As Possible, And Then Forward It To Me, As I Require This Document, (Packing Declaration) To Give To My Agent Here To Release The Container.”
In the same file was a letter dated 4 February 1999 from Persada to Diamond’s Corner marked attention Mr Alex Amron re “Packing Declaration”. At the top of the letter it bore the fax date stamp of “Feb 04, 1999”. The letter stated:
“Dear Mr Alex,
We would like to let you know that we are not able to issue a packing declaration either we act as an agent or as your supplier. Because we don’t do the packing for you. Currently I am asking PT Graha Kerindo Utama, your supplier to provide the packing declaration and looks like they are willing to do it.
Meanwhile please confirm, is it ok if we just send it by fax, cause it is not possible to send by TNT the main that cargo will arrive soon it will take two-three days.
Please confirm that you agree or insists to send it by TNT, if you insists by TNT there is costs for it about USD$50/-.
We wait your confirmation urgently, for us to send it as soon, not less than tomorrow.”
Further contained within that file was the packing declaration to which I have previously referred, on paper with the letterhead, “PT Graha Kerindo Utama”, and including a declaration which on the face purported to be made “1/17/1999”. That document has a fax date, “Feb 04 1999”.
Sarkies also recovered a further file in which there was a photostat price list provided from PT. Graha Kerindo Utama to Diamond’s Corner dated 13 January 1999 and concerning items of what may be described as types of toilet tissue.
When regard is had to the correspondence between the plaintiff and Persada being transmitted on 3 and 4 February 1999, it is to be concluded that the defendant must have known that the date of the declaration was false as it preceded this correspondence. Notwithstanding that to be the case, as this declaration was on the site of Clemenger International Freight, it is further to be concluded that it was provided by the defendant to his agent so that the importation of goods in the container could be entered by his agent and obtained by him.
As to the facsimile transmission made on 27 January 1999 stated to be from the defendant to Budi Harianto of UD Usaha Bersama and in particular the reference to the request for it to be specific about the stock, “meaning the contents amount of cartons and/or shippers” the word “shippers” was the subject of evidence before the Court. The witness, Lamont, a customs officer of some 34 years standing, said that in the course of his duties he had dealings with the importation of various commodities contained in cardboard boxes and that in the course of his work he had become aware of the word “shipper” with reference to a cardboard box. He said it was a word used in the tobacco industry to refer to a carton of cigarettes containing 10,000 cigarettes. On looking at the photographs taken when the container was unpacked by, Mariani, he identified a cardboard carton the outside of which had no printing or identification on it but on the inside there was printed, in part, “Dunhill Kingsize London”. He said that that cardboard carton was that referred to as a “shipper”, that is, the cardboard box in which the cigarettes were packed. Further, the witness, Lamont, drew attention to the fact that on the Entry for Home Consumption it stated the supplier to be Persada whereas on the Ocean Bill of Lading the shipper was stated to be Persada. He also drew attention to the description of the goods on the Ocean Bill of Lading and the statement, “CONTAINER STC”. Lamont said that the letters “STC” were the abbreviation for “said to contain”. He said that on the face of the Ocean Bill of Lading the effect was that Persada stated that it did not pack the container but rather that it was pre-packed, sealed and delivered to the shipping company. Notwithstanding this, the defendant sought Persada to provide him with a packing declaration made by it. Again, turning to the invoice dated 12 January 1999 Lamont drew attention to the fact that the invoice was on its face drawn by Persada but that the letterhead of Persada identified it as being “International Sea and Air Freight Forwarding” which was inconsistent with it providing to the defendant an invoice for goods.
The witness, Lamont, was further taken to the letter from Budi Harianto of UD Usaha Bersama transmitted by facsimile transmission to the defendant on 29 January 1999 providing the specifications and stating that “the box contents was 500 packs”. The witness said that that was consistent with what he had previously said that a shipper contains 10,000 sticks comprising 50 cartons in which there were ten packets of cigarettes each packet containing 20 cigarettes or sticks.
During the course of the execution of the search warrant at the premises of the defendant, Custom’s Inspector, Katherine Johnson, found a document being a Commonwealth Bank International Money Transfer Application dated 12 January 1999. The sender was Diamond’s Corner and the beneficiary was stated to be “PT Graha Kerindo Utama ‘USD’ currency for the sum of A$4,570.21”. The details of the payment were stated to be for A$4,570.31. The document bore the stamp of the bank dated 12 January 1999.
On 12 February 1999 the defendant was interviewed by Michael Brereton who was then employed as a customs officer. The interview was conducted through an interpreter. The interview was tape recorded and a transcript of the same was received in evidence. In parts the transcript was corrected in evidence by the interpreter, Abdul El Alo.
In the course of that interview the defendant said that he worked for himself. He owned his own business which was conducted at 24‑28 Berwick Road, Campbellfield in the name of Diamond’s Corner. He described himself as a wholesaler – selling and buying imported goods.
The defendant said that before Christmas he had imported a container of goods from Indonesia and that prior to the importation of those goods he had been to Indonesia to inspect a sample of toilet paper.
The defendant further said in answers to questions addressed to him during the course of the interview that on 6 February 1999 a container which he was expecting arrived in Melbourne addressed to Diamond’s Corner. He was shown the Ocean Bill of Lading concerning that importation and when asked what were the 26 cartons of toys referred to in it, he said that they were plastic toys.
The defendant further said that Clemenger International Freight provided customs broker service for him. He further said that he sent the Bill of Lading and packing paper to Clemenger International Freight and whatever he was given he gave to them. He said that he paid custom’s duty on the importation through that customs broker and that he was aware that duty was payable on the goods imported. The defendant said that the documents he provided to the customs broker contained an account of the actual goods in the container. He said that he did not know that there were cigarettes in the container and that he had not ordered same from any person.
During the course of the interview the defendant agreed that he had previously mentioned that he had researched whether he might import cigars, but it cost too much and he could not afford it. When the defendant was shown the paper, being the guest stationery, Puncak Inn Resort Hotel, he denied that it was his writing on the document and said that he had never seen it before. After the top section of the document was translated to him he was asked whether it related to toilet paper and he replied, “Maybe yes”. When the second section of the paper commencing with the word, “Malboro” was referred to he said that it was not his writing and that he did not “know about it”. He said that the writing which was about the toilet paper concerned what he had actually paid in regard to the first shipment. When the back of the document was shown to him he agreed that the writing was in his handwriting. When it was put to the defendant that the number that was written on the back of the document would suggest that he had seen it before he said that he had seen the document but that he had not written on it. He said, “I did not write it”.
Later in the course of being interviewed he said that if this document was found or located in his shop that meant it was there but said, “I haven’t seen it before”. He then said that possibly he had written a number on the back but said, “I did not look at the face”. The defendant agreed that when in Indonesia he had stayed, “at the place that is nominated in the letterhead”. The defendant further denied that he had written the document and said that he did not know who wrote the document. When again taken to the writing on the face of this document and asked what he could tell the interviewer about it he said that it says “Malboro”, but said that he did not know what that referred to and when it was said to him that some of the cigarettes located in the container were Marlboro cigarettes he said that he had no idea about them at all. When asked whether he was familiar with the cigarette brand Marlboro he said that he smoked Marlboro. When asked whether he could explain why the two different commodities were spoken about in the one document, the defendant replied that when he went to Jakarta he went to the cigar company and asked them for information as to the prices of cigarettes, that they gave him the price of cigarettes and when he worked out the tax for the government he found it too expensive and said that he could not afford that money.
Further in the interview the defendant was taken to the letter from UD Usaha Bersama which had the facsimile date imprint “Jan 29, 1999”. He said that it did not refer to the container in which the cigarettes were found and when later asked whether he could tell the interviewer “anything about what the document relates to”, he replied, “maybe for toilet paper or something, for the toilet paper, the packet of ten”. When taken to the documents, including the fax cover sheet, addressed to Budi Harianto of UD Usaha Bersama and dated 27 January 1999, and asked about the type written part of the document he said that he possibly might have seen the fax regarding toilet paper. He said that maybe he told the office to prepare the fax and possibly he might have told his wife and his wife did it. When asked why he would make the request to not have the names of the products on the fax, he said that when goods have Indonesian writing printed on it that would make the price of the goods lesser in Australia. When again asked why he asked the people in Indonesia not to put the name of the goods on the information they sent to him he replied “Not to write it on the packet”. When asked the difference between a box and a shipper, he said that when he said “shipper” it’s a large box. When it was put to him that “shipper” is a word usually used when boxes containing cartons of cigarettes are talked about and asked whether he had heard that term used like that, he replied that he could “contact Alexander” because he asked him for two shippers for cigarette lighters. Later in the interview he said that a “big box means shipper”.
When it was put to him that the interviewer understood a shipper to be a quantity of cigarettes housing 50 cartons of cigarettes each with ten packs and asked whether that would surprise him he replied that he would not be surprised but that he was not talking about cigarettes stating that he did not have the money to purchase them.
On behalf of the plaintiff it was submitted that the Court should conclude that when the defendant, in the course of being interviewed by Brereton, was asked whether he had seen the document headed “Puncak Inn Resort Hotel” before, and he had replied, “No I haven’t seen it before”, that by that answer the defendant had lied. It was submitted that it should be concluded that that lie of the defendant was inconsistent with him being innocent of the offences, which the plaintiff has pursued against him in these proceedings, and that this lie, of the defendant, in the circumstances should be accepted as an implied admission of guilt by the defendant of those offences, that is, that he had smuggled the cigarettes in the container and that he had knowingly made a statement to an officer, being the Entry for Home Consumption, that was false or misleading in a material particular.
On the face of that document it would appear that it comprised two parts, the first part, which the defendant said, in the course of his interview, that it related to the quantity and prices that were paid by him in the first shipment of toilet paper and the second part of the document being the part, the first word of which is, “Malboro”.
In R v Edwards[12] at p. 209 Deane, Dawson and Gaudron JJ said:
“… not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And a lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie.”
Again, at p. 210 their Honours said:
“A lie can constitute an admission against interest only if it is concerned with some circumstances or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence.”
[12][1993] 178 CLR 193.
When interviewed by Brereton on 12 February 1999, at the outset the defendant was asked questions about the importation by him of toilet tissue before Christmas 1998 which was referred to as the first shipment. This is relevant when regard is had to the answer of the defendant when interviewed that the first part of this document related to the first shipment. Assuming for the purpose of argument that when first confronted with this paper the defendant deliberately lied when he said that he had not seen it before, I cannot conclude that that lie related to a material issue in this case. I cannot be satisfied that such lie was connected with the offences for which the plaintiff has proceeded against the defendant in these proceedings. It appears that the interviewer accepted that the first part of this document related to the first shipment. That being the case the second part of this document may equally relate to that first shipment. I am unable to be satisfied that this lie, which I have accepted for the purpose of argument, was a lie told by the defendant relating to a material issue in these proceedings. The lie may have related to the first shipment, which is not the subject of these proceedings, that is, that he lied as to his knowledge of this document, in circumstances in which he knew that if he told the truth it may implicate him in the commission of an offence concerning the first shipment. Accordingly, I put this matter to one side and do not have regard to it in this proceeding.
As part of the plaintiff’s case a number of answers sworn by the defendant to interrogatories of the plaintiff delivered for the examination of the defendant in these proceedings, were tendered and received in evidence. After this had been done and subsequently, when a number of the interrogatories and answers made to them were analysed, counsel for the plaintiff sought to withdraw from the tender a number of answers to interrogatories tendered, it then being perceived that a number of such answers were not admissions against interest made by the defendant but rather were statements favourable to him. In Adams v Dickson [1974] VR 77 at p. 79 Gillard J delivering the judgment of the Court said:
“The prime purpose [of interrogatories] is to obtain admissions from the respective parties as to narrow the necessary proof of the issues raised in the pleadings. In jurisdictions where there are no pleadings, their main purpose lies in obtaining particulars of the material facts being alleged against the litigant interrogating. Above all, by such method, necessary proof of material facts which may be beyond doubt, can be facilitated by admissions in answer to interrogatories, thereby removing proof of such facts from the arena of dispute at the trial, so saving time and expense of the parties, and permitting the court and the parties to get immediately to the vital issue or issues requiring determination by the court.”
As to the interrogatories and answers tendered on behalf of the plaintiff in these proceedings I propose to have regard to such answers as constitute admissions by the defendant. As to the answers which do not come within that category but maybe said to be not admissions I propose to put the same to one side and have no regard to them, because when properly analysed they do not constitute admissions against interest made by the defendant.
A party interrogated in a civil proceeding is required to answer such interrogatories from knowledge and information and belief – Rule 30.05 Chapter 1 of Rules of the Supreme Court. To the extent that an answer to an interrogatory is tendered and relied on by the plaintiff by way of admission made by the defendant in this proceeding, notwithstanding it being a civil proceeding, an answer which in its form or content demonstrates that the defendant makes the answer only from information or belief, it could, in my view, have little or no weight given to it.
The evidence provided by the answers to interrogatories forming admissions of the defendant and with respect to which I have regard to in this trial is, that for a period from approximately four years before and until the 14 December 2000, being the date on which he swore the answers, he had conducted a business known as Diamond Corner and Diamond’s Corner and that he did so as a sole trader until or about 9 June 1999 when a company was incorporated; that the nature of the business was a wholesaling business, through which the defendant imported goods into Australia for the purpose of resale; that by reference to a copy of the Ocean Bill of Lading dated at Jakarta on January 17, 1999 the defendant ordered 276 cartons of goods from Indonesia on or about 17 January 1999; that again, by reference to a copy of the Ocean Bill of Lading, the defendant is uncertain as to the date on which the goods in connection with that document were packed although he thought it would have been mid-January 1999; that during the period 5 January to 23 January 1999 the defendant was in Indonesia; that by reference to a copy of the Entry for Home Consumption the defendant on approximately 26 or 27 January 1999 provided to an employee of Clemenger International Freight the information contained in that document being the type of goods, the invoice prices in respect of the goods, the number of packages, the container number and the Bill of Lading number and that such information was provided by documents that he had received from Indonesia concerning the shipment and including the invoices, packing documents and the like and, that the purpose for which the information was given, was to permit the goods to be Entered for Home Consumption; that in approximately mid-1998 from enquiries made prior to commencing the business of importing goods from Indonesia the defendant was aware that custom’s duty is payable on cigarettes imported into Australia; that in or about approximately mid-1998 the defendant made enquiries about the amount of custom’s duty payable on the importation of cigarettes into Australia from customs officials in Melbourne and that the information obtained by him was that the amount of customs to be paid was according to the weight of the product; that the front cover sheet of the facsimile transmittal sheet dated 27 January 1999 addressed to Budi Harianto of UD Usaha Bersama was a cover sheet of the defendant’s business and was sent on the defendant’s behalf.
Section 68 by sub-s. 1(a) of the Customs Act applies to goods that are imported into Australia. By sub-s. (2) of that section it is provided:
“(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.”
It is provided by sub-paragraph 3:
“(3)If the owner of goods to which this section applies does not enter the goods under sub-s. (2) for a purpose set out in that sub‑section, 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 any goods are to be discharged.”
It is provided by s. 257(4)(a) of the Act that:
“(4)Any conduct engaged in on behalf of a person other than a body corporate:
(a)By a servant or agent of the person within the scope of the actual or apparent authority of the servant or agent; or
(b)….
shall be deemed, for the purpose of this Act, to have been engaged in also by the first mentioned person.”
The goods in the container were consigned to the defendant. He provided to Clemenger International Freight, the documents found in its file for it to Enter the goods for Home Consumption. He did this as owner of the goods. The Entry for Home Consumption was made by Clemenger International Freight as the agent of the defendant.
In Wong v Kelly[13] the Court of Appeal of New South Wales had before it an appeal concerning convictions of the appellants under the Customs Act which convictions included smuggling goods in contravention of s. 233(1)(a) and the making of a false Entry in breach of s. 234(1)(d). One of the issues raised on the appeal was whether the proceedings before the trial judge were criminal or civil. The trial judge held that the proceedings were civil. In his judgment on the appeal Stein JA, with whose judgment Mason P and Meagher JA agreed, held that the trial judge was right to treat the proceedings before him as civil and not criminal proceedings and to apply the standard of proof in Brigginshaw v Brigginshaw[14]. In his judgment Stein JA referred to the judgment of Byrne J in Comptroller-General of Customs v Jayakody[15] wherein his Honour concluded that he should submit to the weight of authority and accept that in proceedings such as that presently before the Court, that the standard of proof was that applicable to a civil proceeding, and saying further that in proceedings before him which was in the nature of a customs prosecution brought under Part XIV of the Act that he should, “examine the evidence with particular care so that any finding I make is made only where the plaintiff’s case has been clearly established”.
[13](1999) 154 FLR 2001.
[14](1938) 60 CLR 336.
[15](unreported) Vic 4657 of 1992, 9 November 1993.
Having regard to the decision of the Court of Appeal of New South Wales in Wong v Kelly and the decision of Byrne J in Comptroller-General of Customs v Jayakody and the various authorities cited by both Stein JA and Byrne J in their respective judgments I feel that I am required to conclude, as I do, that the standard of proof in the present proceedings is that enunciated by the High Court in Brigginshaw v Brigginshaw. At p. 361-2 of his judgment in that case, Dixon J said:
“Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
On the evidence before the Court in these proceedings including the averments of the plaintiff made by him by his statement of claim as to the facts therein set out I am satisfied that the container bearing the number referred to by Mariani in his evidence with the seal numbered as stated by him was landed by sea in Melbourne from Indonesia. The container and its contents were consigned to the defendant by the name of his business. It contained 250 packages or cartons of toilet tissue and 26 packages or cartons of cigarettes. The container did not contain 26 packages or any package of toys. The 26 packages of cigarettes were packed within the container in such a manner as to be situated about one third back from the entrance and being surrounded by cartons of toilet tissue. Some of the cartons which were found to contain cigarettes had no markings on the outside as to identify their contents. Others had markings indicating that the contents of the same were biscuits or cereals. The cartons of cigarettes within the container were packed in such a way as to not be able to be readily seen on the opening of the container and the contents of the same not truly able to be identified unless the cartons were opened. The container was packed in Indonesia.
On 27 January 1999 the defendant by facsimile transmission wrote to Budi Harianto of the company UD Usaha Bersama requesting him to “be specific about the stock meaning the contents, amount of the cartons and/or shippers as well as the price item”. I accept the evidence of Lamont that the word shipper is a peculiar term used in the tobacco industry to refer to the cardboard carton which contains 10,000 cigarettes. To the enquiry of the defendant Budi Harianto transmitted a letter to the defendant received on 29 January 1999 referring to the fax received from the defendant and dated 27 January 1999 and informing him that the specification was that set out meaning the box contents was “500 packs”. I am satisfied that these transmissions directly concerned cigarettes and that was known to the plaintiff by his use of the word “shipper”.
This request made by the defendant to UD. Usaha Bersama, at the time that the defendant was in the process of having the container and goods, the subject of these proceedings, shipped to Australia for the purpose of importing the goods into Australia. It was made at a time subsequent to the defendant making enquiries from which he was aware that custom’s duty was payable on the importation of cigarettes into Australia.
By the letter from Persada to the defendant, a copy of which was received by facsimile transmission dated 30 January 1999, Persada informed the defendant that it had sent to him the original and copy Bill of Lading, the Invoice and Packing List. The Ocean Bill of Lading, the original of which was provided by the defendant to Clemenger International Freight, identified the container and seal by the numbers previously referred to and identified Persada as the shipper. The Ocean Bill of Lading stated that the container was “said to contain” 250 cartons of toilet tissues and 26 cartons of toys. That clearly indicated that Persada did not pack the same. The invoice provided by the defendant to Clemenger International Freight had as its heading the full name of Persada, and “International Sea and Air Freight Forwarding, Project Transportation Specialist”, but the defendant gave this invoice to its agent, Clemenger International Freight, to have it make the Entry for Home Consumption.
On 3 February 1999 the defendant sent by facsimile transmission to Persada a letter advising the receipt of the documents that it had forwarded and stating that he required from Persada a “packing declaration, with your letterhead being the packer or supplier on the top of the document”. He did this at a time when he had the Ocean Bill of Lading from Persada which stated that the container was “said to contain” the goods stated on the document. The defendant also provided to Persada a copy of what was required from it as the packer of the shipment. The defendant informed Persada that it required that packing declaration to give to his agent to release the container. To that request Persada ,by facsimile transmission dated 4 February 1999, informed the defendant that it was not able to issue a packing declaration, stating, that it could not because they did not do the packing for the defendant and further stating that it was asking “Utama”, identified by Persada as “your supplier”, to provide the packing declaration and stating that it looked as if they would be willing to do so. Insofar as Persada stated that Utama was the defendant’s supplier, the defendant must have known that the invoice furnished by him to Clemenger International Freight for both the toilet tissue and the 26 cartons of toys was an invoice provided by Persada and not “Utama”. There was contained on the file found at the defendant’s premises a packing declaration purportedly declared and signed by Utama on the date “01/17/1999”. It was a copy of this document that the defendant provided to Clemenger International Freight notwithstanding that by reason of the communications had between the defendant and Persada and, in particular, the transmission from Persada to the defendant dated 4 February 1999 that the defendant knew the declaration to be false in that by the face of the document it was made on 17 January 1999. By the defendant requesting Persada to provide him with a packing declaration for the container which request was denied by Persada it is to be inferred that the defendant knew that Utama did not do the packing of the container for if it was otherwise he would have asked Utama to provide the declaration initially. Notwithstanding this when he received the packing declaration which on its face was untrue he was prepared to and did provide it to Clemenger International Freight to make the Entry. The conclusion that I draw from these facts is that the defendant knew that the container contained goods which he was importing which were not stated on the invoice and the Ocean Bill of Lading. In fact the container did not contain 26 cartons of toys but a like number of cartons or boxes of cigarettes. I am satisfied to the degree necessary, that when regard is had to the communications concerning “shippers” and the matters relevant to the completion and use of the packing declaration and the invoice, that the defendant knew that the goods being imported by him included the cigarettes which were in the container and that he was not importing toys.
On entering the goods for home consumption, Clemenger International Freight did so as agent for the defendant and from the documents provided to it by the defendant including the packing declaration, the invoice provided by Persada and the Ocean Bill of Lading. By virtue of s. 257(4)(a) of the Act the Entry for Home Consumption is deemed to have been made by the defendant. The Entry for Home Consumption was false or misleading in that it stated that the importation, in part, contained toys when it did not and whereas the importation included cigarettes they were omitted from the Entry. The Entry for Home Consumption was false or misleading in that it stated that the total custom’s duty payable in respect of the importation was A$316.22 when, in fact, when account was taken of the cigarettes contained in the importation the total custom duty was A$37,869.72. Before the importation the defendant had made enquiries from officers of customs and was aware that custom’s duty was payable on cigarettes imported into Australia.
When considering the allegation that the defendant smuggled goods, namely the cigarettes, having regard to the conclusion that I have reached that the defendant at the relevant time knew that the goods being imported into Australia by him included the cigarettes that were in the container and taking into account the averments of fact as prima facie evidence of the fact that to the knowledge of the defendant the Entry was false and that the defendant deliberately omitted from the Entry a statement that the importation contained 26 packages containing 850 cartons of cigarettes each carton of which contained 200 cigarettes, and further being satisfied that to the knowledge of the defendant at the time of the importation, custom’s duty was payable on the importation into Australia of cigarettes, I am satisfied that the defendant imported into Australia the cigarettes that were in the container with the intent to defraud the revenue.
It was the defendant’s intent to defraud the revenue which caused him to provide documents to Clemenger International Freight for it, as his agent, to make the Entry for Home Consumption deliberately omitting from such documents provided to Clemenger International Freight any document relating to the importation of the cigarettes. It was by this procedure that the defendant imported the cigarettes with intent to evade the payment of custom’s duty on the same and thereby with the necessary intent to defraud the revenue.
I turn next to the offence alleged against the defendant under s. 234(1)(d)(i) of the Customs Act. For the reasons previously stated I am satisfied that the defendant knew that he was importing 26 boxes of cigarettes into Australia and not toys. The Entry for Home Consumption made by the plaintiff’s agent and thereby deemed to be the defendant was false or misleading in that it stated that the importation contained toys when it did not and it did not state that it contained cigarettes when it did. The Entry for Home Consumption was false or misleading in a material particular.
The defendant provided documents to his agent for it to make the Entry and in doing so provided it with documents that the importation contained 26 boxes of toys when, for the reasons previously stated, he knew that the importation did not contain toys but rather the same amount of boxes of cigarettes. He provided no information to his agent that the importation included the cigarettes. I am satisfied that the Entry was false or misleading in a material particular to the knowledge of the defendant and that by the Entry the defendant knowingly made a statement to an officer which was false or misleading in a material particular.
Accordingly, I am satisfied to the necessary degree that the plaintiff has established that on or about 9 February 1999 the defendant imported cigarettes into Australia with the intent to defraud the revenue and thereby smuggled such cigarettes in contravention of s. 233(1)(a) of the Act. Further, I am satisfied to the necessary degree that the defendant, by the Entry for Home Consumption, knowingly made a statement to an officer which was false or misleading in a material particular, in contravention of s. 234(1)(d)(i) of the Act.
Before making formal orders and declarations and determining what monetary penalty should be imposed I will hear counsel.
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