Clarke v Chief Executive Officer of Customs

[2005] SASC 165

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

CLARKE v CHIEF EXECUTIVE OFFICER OF CUSTOMS

Judgment of The Honourable Chief Justice Doyle

4 May 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS

The appellant was convicted in the Magistrates Court for offences contrary to the Customs Act 1901 (Cth) - the offences related to the importation of four vehicles, one vehicle in particular that was released on incorrect documents - the appellant appeals those convictions and also the order as to costs - count 1: whether the defendant was the 'owner' of the goods for the purposes of s240(1) of the Customs Act 1901 (Cth) - was the prosecution required to prove which commercial documents had been issued and were required to be kept by the defendant - was the defendant required to keep the documents for the whole of the period referred to in the complaint - count 2: whether the Magistrate erred in finding that the defendant had not made an honest and reasonable mistake - whether the principal offence had been sufficiently proven resulting in the aiding and abetting charge - whether a vehicle was 'no longer subject to the control of Customs' as it had been 'forfeited to the Crown' under s229 - count 3: whether the Magistrate erred in finding that the appellant evaded duty payable with knowledge of incorrect documents - whether the appellant made an honest and reasonable mistake that the duty had been paid - whether liability to pay duty arose if the vehicle was not entered for home consumption - other grounds: whether the Magistrate's reasons were based on the averments in the complaint and on prosecution submissions to the extent that the Magistrate did not properly consider the matter and make independent findings as to the issues - whether the Magistrate erroneously relied on the averments for findings of law or of mixed law and fact - whether the Magistrate erred by admitting tape recorded interviews - whether the order as to costs by the Magistrate was manifestly excessive - appeal dismissed.

Customs Act 1901 (Cth) ss 183C, 71B, 77P(1), 240, 33(1), 229, 4, 234(1)(a), 234(2)(a); Motor Vehicle Standards Act 1989 (Cth), referred to.
R v Buckett (1985) 132 ALR 669, applied.
Giorgianni v The Queen (1985) 156 CLR 473, distinguished.
Ace Customs Services Pty Ltd v Collector of Customs (1991) 104 ALR 463, considered.

CLARKE v CHIEF EXECUTIVE OFFICER OF CUSTOMS
[2005] SASC 165

Magistrates Appeal:  Criminal

1. DOYLE CJ:          Mr Clarke was charged on complaint with three offences against provisions of the Customs Act 1901 (Cth) (“the Act”).

2. In brief the offences were failing to keep certain records as required by the Act; aiding and abetting the movement of goods contrary to the Act, and evading duty payable under the Act.

3. The charges were heard in the Magistrates Court.  After a hearing over several days the Magistrate found the charges proved and found Mr Clarke guilty of each offence.

4. Mr Clarke appeals against the convictions.

   Background

5. The following matters are either not in contention or are supported by findings by the Magistrate that are no longer challenged, except when I indicate otherwise.

6. Mr Clarke, at all material times, was a customs broker licensed under s 183C of the Act. In November 1998 he acted as broker in relation to the importation into Australia of four motor vehicles. The vehicles were described to Customs (the term used in the Act to refer to the Australian Customs Service) as follows:

   (a)     1983 Mercedes Benz 500 SEL (#HB677);

   (b)     1983 Mercedes Benz 190E (#FE384);

   (c)     1983 BMW 535I (#DZ1622); and

   (d)     1983 Mercedes Benz 500 SEC (#CL1683).

7. The vehicles were placed in a licensed depot conducted by Austainer Services (“Austainer”) to be held there until they were entered and delivered for home consumption, and released from Customs control. In the ordinary course the goods would be released by Customs giving to the relevant person an authority to deal with a vehicle under s 71B of the Act. That would be subject to payment of the appropriate duty.

8. There was an investigation into the value of the vehicles for duty purposes.  I understand that a motor vehicle less than 15 years old attracted a substantial liability to duty that did not apply to a motor vehicle manufactured more than 15 years prior to the time of importing.  It turned out that the fourth motor vehicle was manufactured in 1985, and not in 1983 as stated to Customs.  Accordingly, it attracted the higher duty.

9. In about June 1999 the first three motor vehicles were entered for home consumption, duty was paid on them, and they were released.  Mr Clarke acted as broker or agent in connection with these events.

10. The fourth vehicle remained at the Austainer depot. By s 77P(1) of the Act it was a condition of Austainer’s licence that goods be removed from the depot to a warehouse by the end of the month following their receipt. This was not done.

11. For some time it seems nothing much was done about the fourth vehicle, possibly because the owner was waiting for the 15 years to elapse.  Whatever the reason, after some time employees of Austainer began putting pressure on Mr Clarke to deal with the fourth vehicle.  It was incurring storage charges.

12. On 23 April 2001 Mr Zanardo, a Customs Officer, spoke to Mr Clarke.  Mr Clarke told Mr Zanardo that he did not have the documents required to obtain the release of the fourth vehicle.  There is no dispute that he asked Mr Zanardo for some documents, and that Mr Zanardo agreed to help him.

13. Mr Zanardo arranged for Mr Clarke to be given three documents, which were tendered as P7, P8 and P9.  Each of them is a copy of the entry for home consumption of one of the other three vehicles.  Exhibit P8 related to the first vehicle, a 1983 Mercedes Benz 500SEL.

14. On 23 May 2001 Mr Clarke spoke to Mr Olesen, another Customs Officer.  Mr Clarke produced to him the entry for home consumption P8. 

15. It is, I understand, common ground that Mr Olesen then provided to Mr Clarke a copy of the “authority to deal” relating to the vehicle recorded on P8.  This authority indicates that duty has been paid on the vehicle, the subject of the document.  However, the identity of the vehicle referred to is not shown on the “authority to deal”.  To identify the vehicle it was necessary to refer to the relevant entry for home consumption, P8.  A copy of the authority was tendered as Exhibit P3.

16. It is convenient to mention at this point some matters that were disputed.  Mr Olesen’s evidence was to the effect that he mentioned to Mr Clarke that the entry P8 was “an old one” (having been issued in August 1999) and that he asked Mr Clarke why it had not been acted on much earlier, thinking it related to a vehicle yet to be released.  On the Prosecution case this was relevant to show that Mr Clarke knew that P3 and P8 did not relate to the vehicle still held by Austainer.  The Defence case, put in cross-examination, was in substance that Mr Clarke said to Mr Olesen that he wanted to clear the motor car being held by Austainer, and that he asked for an authority to deal in relation to the car still held by Austainer and that Mr Olesen mistakenly produced to him the authority to deal relating to the vehicle released in 1999.  It was also suggested in cross-examination to Mr Olesen that he had pointed out to Mr Clarke that duty had been paid.  He denied that.  The suggestion to Mr Olesen was made to lay a basis for a defence submission that when told that duty had been paid, Mr Clarke thought that he must have forgotten paying the duty on the vehicle still at Austainer’s depot.

17. Mr Clarke then presented P3 to the Australian Quarantine Service, and obtained a quarantine release.  That was marked on P8 as a delivery condition.

18. On 24 May 2001 Mr Clarke and Mr Au went to the Austainer depot.  Mr Au presented P3 to an employee of Austainer.  Mr Clarke paid the amount owing to Austainer for storage, after negotiating down the amount claimed.  It was proved that this payment was made from money paid to Mr Clarke by Mr Au.  On the same day one or other of them presented a copy of an import approval issued by the Federal Office of Road Safety (FORS) dated 20 May 1998, and relating to a 1983 Mercedes Benz Model 500 SEC.  The obtaining of that permit was another delivery condition marked on P8.

19. For reasons that are unclear, an employee or employees of Austainer failed to check P8 against P3, and the vehicle in question and so failed to realise that P3 related to a vehicle other than the one that Austainer was holding.  The Prosecution pointed to the fact, and suggested it was significant, that the vehicle already released was a “500 SEL”, and that the vehicle held by Austainer was a “500 SEC”.

20. The vehicle was released to Mr Au, and driven from the depot by him.

21. No duty was paid to secure the release of the vehicle, because it was released on the basis of P3, which recorded that duty had been paid.

22. It later came to light that the motor vehicle had been released without duty being paid.  Customs Officers spoke to Mr Clarke on 3 July 2001.  They spoke to him again on 4 July 2001, and searched his business and residential premises for documents relating to the four motor vehicles.  Records of those conversations were tendered as part of the Prosecution case.  The Customs Officers did not find any documents relating to the four motor vehicles, nor did Mr Clarke produce any.

    The Prosecution case

23. In brief, the Prosecution case was as follows.

24. As to count 1, the Prosecution alleged that as agent for the owner of the four vehicles, Mr Clarke was obliged by s 240(1) of the Act to:

    … keep all the relevant commercial documents relating to the goods that came into that person’s possession or control … until:

    (a)if the goods are not ultimately entered for home consumption – the goods cease to be subject to the control of Customs; and

    (b)if the goods are entered … for home consumption – the expiration of the period of five years after the goods are so entered.

25. The Prosecution case was that the fourth vehicle did not cease to be subject to the control of Customs, because its release was never authorised.  As to the other three vehicles, the five year period had not expired.  Accordingly, the Prosecution case was that in the period particularised, between 1 April 2001 and 5 July 2001, Mr Clarke failed to keep commercial documents relating to the four vehicles, should have kept them, and did not do so.

26. The Prosecution case was that the failure to keep the goods during the period particularised was proved by admissions made by Mr Clarke to Customs officers, that he did not have the documents required to clear the goods, by admissions made when interviewed, and by the fact that when his premises were searched, the documents could not be found.

27. The Prosecution case on count 2 was that Mr Clarke was guilty, as an aider and abetter, of moving the vehicle contrary to the requirements of the Act when it was subject to the control of Customs, contrary to s 33(1) of the Act. The vehicle was removed from the Austainer depot without being entered for home consumption and without duty being paid, and without a FORS permit (the permit used misdescribed the vehicle). The Prosecution contended that Mr Clarke knew that the documents presented did not relate to the vehicle that was moved, and knew that duty had not been paid on it.

28. The Prosecution case on count 3 was that Mr Clarke evaded duty by using an “authority to deal” relating to another vehicle to secure the release of the vehicle in question, and without paying duty.

    The Defence case

29. Mr Clarke did not give evidence. 

30. What follows is the substance of the Defence case.  I gather that many points were argued before the Magistrate, not all of which are now pursued.

31. On count 1 the Defence case was that Mr Clarke was not an owner of the goods for the purposes of s 240(1), and so was under no obligation to keep documents relating to them. It was also argued that the Prosecution had to prove, but failed to prove, which commercial documents had come into Mr Clarke’s possession. It was argued that the Prosecution had to prove not just that during part of the relevant period the commercial documents were not in Mr Clarke’s possession, but that they were not in his possession for the whole of the period referred to in s 240(1).

32. As to count 2 the Defence case was based largely on cross-examination of the Customs Officers, and on statements made by Mr Clarke when interviewed.  In effect the Defence case was that Mr Clarke had asked Mr Zanardo for the documents he needed to clear the vehicle held by Austainer.  Having been given exhibit P3, he thought that related to the vehicle held by Austainer.  When he was told by Mr Olesen that no duty was payable, he thought that he must have paid the duty some time ago, and had forgotten doing so.  So the submission was that he acted honestly but mistakenly.  On the Defence case it was mistakes and omissions by Customs Officers and by employees of Austainer that led to the release of the vehicle.  As well, the Defence argued that Mr Au was the one who moved the vehicle, and not Mr Clarke.  It was, I believe, common ground that Mr Au had driven the vehicle away.

33. It is convenient to mention here that the Customs Officers did not accept the version of the relevant conversations put to them by Defence counsel, although that is not to say that they rejected that version entirely.  That being so, the failure of Mr Clarke to give evidence was a significant factor.

34. The Defence relied on the same matters in relation to count 3.  The substance of the Defence was that there was no intention to evade duty.  In the alternative, it was argued that there was an honest and reasonable belief that duty had been paid.  It was also argued that as the vehicle was never entered for home consumption, duty never became payable.

35. Mr Clarke also disputed the entitlement of the Prosecution to rely on the number of the averments found in the complaint.

    The Magistrate’s decision

36. The Magistrate accepted the Prosecution case in substance.

37. As to count 1 he found that Mr Clarke, as an agent with respect to the importation of the vehicles, was the “owner” as defined by s 4 of the Act. Accordingly, he was obliged to keep the relevant documents and had not kept them as required.

38. As to count 2 the Magistrate found that the vehicle was moved contrary to the requirements of the Act. That was clearly the case. The Magistrate found that Mr Au was the principal offender, and that Mr Clarke was guilty as an aider and abetter. He found that Mr Clarke did not honestly and reasonably believe that the documents he presented to Austainer entitled him to obtain the release of the motor car. Although the findings are not expressed as clearly as they might be, it is clear enough that he was satisfied that Mr Clarke knew that the documents presented to obtain the release of the vehicle were not the documents required for the purposes of the Act.

39. As to count 3 the Magistrate found that the duty was in fact payable and was evaded by the deception practised on Austainer by Mr Clarke and by Mr Au.

    Issues on appeal

40. The notice of appeal complains that the Magistrate erred in treating the proceedings as summary proceedings in the criminal division of the Magistrates Court.  This ground was not pursued on appeal.

41. Mr Agresta, counsel for Mr Clarke, made a general challenge to the Magistrate’s reasons.  He submits, correctly, that a substantial part of the Magistrate’s reasons consists of a repetition of the averments made on the complaint, followed by a repetition of the written submissions by counsel for the Prosecutor, made in response to a submission by the Defence of no case to answer.  This was developed into a submission that the Magistrate failed to make findings of fact, and failed to distinguish between finding a case to answer and finding the charges proved beyond reasonable doubt.

42. I do not accept this submission.  It was open to the Magistrate, in the circumstances of this case, to make findings in terms of most of the averments, and to follow the sequence of the averments.  The averments followed a logical sequence.  The same applies to the Prosecutor’s submissions.  They worked, in a logical fashion, through the factual issues before the Magistrate.  The fact that the Magistrate expressed his findings substantially in the language used in the averments and in the submissions does not support an inference that he simply recited the Prosecution case, without considering its strength. Along the way, the Magistrate made occasional references to the evidence before him.  He said that he was making findings.  He did not adopt every averment.  He made a finding that the Prosecution witnesses were truthful.  I am not persuaded that the Magistrate failed to make proper findings of fact.

43. Section 240(1) of the Act imposes the obligation to keep commercial documents on “(1) A person who is the owner of goods imported into Australia …”. The purpose of the provision is to give the Collector of Customs the opportunity to check the correctness of information given to the Collector. Section 4 defines “owner” as follows:

    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.

    I consider that this definition applies to s 240(1). It makes practical sense to require persons who deal with goods for an owner (in the narrow sense of the person entitled to the goods) or who deal with goods for the purpose of their transmission to the owner (in that same sense) to retain “commercial documents” as defined by the Act.

44. I agree that the definition of “owner” has to be applied with some care.  For example, I doubt whether a mere carrier of goods is an owner, even though the carrier has a temporary control of, and power of, disposition over the goods being carried.  In that respect I agree with the observations made by Davies J in Ace Customs Services Pty Ltd v Collector of Customs (1991) 104 ALR 463 at 466. However, those same observations support the view that, in the circumstances, Mr Clarke is to be regarded as an owner of the goods for the purposes of s 240 of the Act.

45. I say that because Mr Clarke acted as broker in relation to the importation of the four motor vehicles. He was an agent in respect of the goods. He was able to exercise control of the goods. I am satisfied that he was an owner of the motor vehicles for the purposes of s 240(1).

46. It was not necessary to prove the relationship between Mr Clarke and the owner of the goods in the narrow sense. The finding that he was an owner can be made on the basis of his conduct in relation to the goods. The fact that documents relating to the goods name another person as owner of the goods is neither here nor there. For the purposes of s 240(1), there can be more then one owner of particular goods.

47. It follows that s 240(1) imposed an obligation on Mr Clarke.

48. It was not necessary for the Prosecutor to prove which commercial documents came into Mr Clarke’s possession.  The evidence before the Magistrate provided a firm basis for a finding that Mr Clarke had received various commercial documents relating to the goods.  He could not have entered the first three motor vehicles for home consumption, and obtained their release, unless he had commercial documents relating to those motor vehicles.  The fact that he acted as agent in relation to the importation of all four motor vehicles leads to the same conclusion.  This is not a case in which there was a reasonable possibility, absent proof from the Prosecution, that Mr Clarke had never received any commercial documents relating to the goods.

1. The evidence also supported the Magistrate’s finding that Mr Clarke failed to keep the documents that had come into his possession.  Mr Clarke told Customs officers in April 2001 that he did not have the documents necessary to clear the fourth vehicle through Customs.  He told them that he did not have his files.  When interviewed by Customs officers he admitted that he did not have his files or documents relating to the goods.  He admitted that he did not have them at the time and that he did not have them when he dealt with Customs in relation to the release of the fourth motor vehicle.  Indeed, he relied on the fact that he did not have his files containing documents to explain how he mistakenly thought that the documents given to him by Mr Olesen related to the fourth vehicle.  The search of Mr Clarke’s office and home was fruitless.  It was conducted in his presence and in circumstances in which, had the documents been there, one would have expected him to indicate that.  The search standing alone might not prove what the Prosecutor needed to prove, but it does not stand alone.  The finding by the Magistrate that Mr Clarke had no commercial documents relating to the goods was soundly made.

2. The offence charged was proved by the finding by the Magistrate that Mr Clarke did not have any commercial documents relating to the four motor vehicles during the period particularised in the summons, a finding properly made by the Magistrate. The submission that the offence is committed only if the relevant person is not in possession of the documents for the whole period referred to in subparagraphs (a) and (b) of s 240(1) has no substance at all. If that was the meaning of the section, it would follow that if the relevant person had the relevant commercial documents in that person’s possession for a single day during the whole period, no offence would be committed. That would make nonsense of the evident purpose of the provision. Section 240(1) requires the person concerned to retain possession of the relevant documents during the whole of the relevant period.

3. During the cross-examination of Mr Connelly, a prosecution witness, Mr Agresta showed him a bundle of documents.  Mr Connelly agreed that they looked like documents of a kind that would be generated for, and in connection with, the importing of a motor vehicle, and that a number of them had Customs stamps on them (presumably indicating that they had been sighted by Customs or had been in Customs’ possession). The bundle was Marked For Identification.  The same documents were shown later to Mr Brundell, a Customs officer, who agreed that they appeared to be documents relating to the importation of the four motor vehicles and to dealings with them.  The bundle of documents was tendered as D6 through Mr Brundell.

4. Nothing was put to any prosecution witness about the source of these documents.  No evidence was led for the Defence to explain them.   Mr Agresta submits that the tender of D6 raises a reasonable possibility that Mr Clarke had the relevant commercial documents in his possession.  I reject that submission.  A tender of the bundle, without any explanation, establishes nothing relevant to the charge, other than the fact that the documents in question exist and at some stage were sighted by, or in the possession of, Customs.  The tender of the bundle does not provide a basis for a finding that the documents came from Mr Clarke’s possession, or were ever in his possession.

5. The Magistrate did not err in finding count 1 proved.  I dismiss the appeal against the conviction on this count.

6. I turn to count 2.

7. The evidence before the Magistrate, including significant admissions made by Mr Clarke, provided the solid basis for a finding that Mr Clarke and Mr Au went to the Austainer depot on 24 May 2001, and together secured the release of the fourth motor vehicle.  The evidence supported the finding that the release was secured by one or other of them presenting the document P3, on the basis that it related to the vehicle still held by Austainer.  On the evidence, Mr Clarke at the same time reached agreement on and paid the storage charges.  The evidence supported a finding that Mr Au drove the vehicle away, but in any event, on the evidence one or other of them did so.

8. The movement of the vehicle (by removing it from the Austainer depot) was clearly not authorised by the Act. Several statutory requirements were not observed.

9. There was a strong case to support a finding that Mr Clarke knew that the removal of the vehicle was not authorised by the Act. The Magistrate found, although not in precise terms, that Mr Clarke did know this. No basis for disturbing that finding has been made out. The Magistrate was entitled to reject, and did reject, the submission that it was a reasonable possibility that Mr Clarke honestly and reasonably believed that the document presented to secure the release of the vehicle in question related to that vehicle and recorded the payment of duty on it. The basis for a conclusion that Mr Clarke was guilty as aiding and abetting the commission of an offence by Mr Au was made out: cf Giorgianni v The Queen (1985) 156 CLR 473.

10. Mr Agresta submits that Mr Clarke could not be convicted as an aider and abetter, unless it was proved that Mr Au committed an offence against s 33(1). I am prepared to proceed on that basis. The decision of the Court of Criminal Appeal of New South Wales in R v Buckett (1985) 132 ALR 669 at 676-677 is to that effect. There may be an argument to the contrary but I am prepared to follow this persuasive authority.

11. He further submitted that to prove this, the Prosecution had to establish beyond reasonable doubt that Mr Au did not honestly and reasonably believe in a state of facts that, if made out, would mean that the removal of the vehicle was not contrary to the requirements of the Act. That is, Mr Agresta submitted that the Prosecution had to negative a possible “defence” on the part of Mr Au based on an honest and reasonable but mistaken belief in facts that would make the removal of the vehicle an authorised removal.

12. Mr Agresta submitted that as the authority P3 did not identify the vehicle to which it referred, Mr Au might have thought it related to the vehicle in question and might have thought that duty had been paid on that vehicle.  That seems unlikely.  Answers made by Mr Clarke to the Customs Officers who interviewed him indicated that Mr Au had been putting pressure on Mr Clarke to get the vehicle cleared from Customs, and supported an inference that Mr Au knew the reason for the delay and knew that duty had not been paid when the other vehicles were cleared because the vehicle was not more than 15 years old.  However, it is possible that Mr Clarke led Mr Au to believe that duty had been paid, and that is a possibility that is not excluded on the evidence.

13. On the evidence the Magistrate found that Mr Au also presented to an employee of Austainer the FORS permit in respect of the vehicle, which permit was tendered as exhibit D1.  That permit approves the importing of the vehicle in question for the purposes of the Motor Vehicle Standards Act 1989 (Cth). But the permit is dated 20 May 1998, prior to the importing of the vehicle. It refers to the vehicle as a 1983 Mercedes Benz. On the evidence, that was the FORS permit presented to secure the release of the vehicle.

14. In light of the evidence about the dealings with this vehicle, it was open to the Magistrate to find, as he did, that Mr Au could not reasonably have believed that the FORS permit was a valid permit.  It was open to the Magistrate to find that when the vehicle was taken from the Austainer depot Mr Au must have known that it was a 1985 model, and that the FORS permit that was presented was not a valid permit.  Accordingly, the movement of the vehicle was not authorised.

15. I agree that in this respect the Prosecution case is not as strong as it might be, but I am not able to say that the Magistrate erred in making the finding that any “defence” of honest and reasonable mistake on the part of Mr Au had been negatived.

16. Mr Agresta argued that when the vehicle was removed from the Austainer depot, it had ceased to be “subject to the control of the Customs”. This was because it had been forfeited to the Crown, by operation of s 229(1)(h) of the Act which provides:

    229    Forfeited Goods

    (1)     The following goods shall be forfeited to the Crown:

    …

    (h)     All goods which by this Act are required to be moved or dealt with in any way and which shall be not be moved or dealt with accordingly.

    …

17. Mr Agresta referred to the fact that by s 77P(1) of the Act it was a condition of Austainer’s depot licence that the motor vehicle be removed into a warehouse before the end of the month following its receipt, and that this had not been done. He argued that that resulted in a forfeiture under s 229(1)(h).

18. The short answer to this point, in my opinion, is that the vehicle was still subject to the control of the Customs, even if it was forfeited to the Crown by operation of the provision referred to, and was liable to be delivered to the Crown (in one of its manifestations) upon demand, or was liable to seizure under statutory provisions relating to the seizure of forfeited goods. A reading of s 229 indicates that forfeiture is not intended to operate so as to place the forfeited goods beyond the control of the Customs at the moment of forfeiture. There is nothing in s 30, dealing with the circumstances in which goods are subject to the control of the Customs, which suggests that that control ceases if a statutory forfeiture takes place.

19. Quite apart from that, it may well be, as Mr Barnett argued for the respondent, that the vehicle had not been forfeited to the Crown. It may be that a statutory condition of a depot licence requiring movement of goods is not a requirement imposed by the Act. However, it is not necessary to decide that point.

20. I dismiss the appeal against the conviction on count 2.

21. I consider that count 3 was clearly proved.  The vehicle was removed from the depot and from the control of the Customs on 24 May 2001, duty not having been paid on the vehicle, as a result of a vehicle not having been entered for home consumption.  This was the result of the presentation of documents in circumstances that were intended to and did create a belief on the part of employees of Austainer that the release of the vehicle was authorised and that duty had been paid.  The Magistrate found that Mr Clarke knew that the documents were being used in this manner, and intended them to be used in this manner.  It follows that Mr Clarke was a participant in the evasion of duty by delivering the authority P3 to Mr Au, and by his attendance at the Austainer depot with Mr Au for the purpose of securing a release of the motor vehicle without duty being paid.

22. Contrary to Mr Agresta’s submission, it was not necessary to prove that Mr Clarke was the owner of the motor vehicle for the purposes of this offence.  The offence can be committed by a person who is not the owner or, to put it a little differently, the person who might primarily be liable for the duty.

23. The amount of duty payable was the subject of an averment.  It was in any event proved by a document tendered as exhibit D10.  That document contains a decision as to the Customs value of the motor vehicle, a statement of that value and a calculation of the duty payable and the demand for the duty.  The document is dated 11 September 2001.  As its date indicates, it was brought into existence after the commission of the offence.  However, and assuming that the averment as to the amount of duty cannot be relied upon because it is not a matter of fact, I consider that exhibit D10 is sufficient proof of the amount of duty payable.  As I understand the submissions, there is no challenge to the determination of value or to the calculation of duty.  The submission by Mr Agresta was simply that the amount of duty payable had not been properly proved.

24. Quite brief submissions were put on the issue of when the duty became payable, bearing in mind that the vehicle was never entered for home consumption.  Mr Agresta pointed out that s 132(1) provides that the rate of duty payable on goods is the rate of duty in force when the goods are entered for home consumption.  He submitted that as the goods were never entered for home consumption, liability to pay duty never arose.  He made the point that there was no obligation to pay duty on the vehicle while it remained at the Austainer depot.  There was no proof, not surprisingly, that the duty payable on the vehicle had been determined as at 24 May 2001.  He pointed to other statutory provisions which reflect a regime under which, in relation to goods entered for home consumption, duty is payable at that time. 

25. I consider that as a matter of ordinary language what occurred was an evasion of the duty payable. Mr Clarke was involved in a deception, used to secure the release of the vehicle without duty being paid, by avoiding the appropriate statutory procedures that would have led to an entry of the vehicle for home consumption, a calculation of the duty and a demand for payment. There is no doubt that had the vehicle been entered for home consumption duty would have been payable and would have been demanded. As a matter of ordinary language what happened amounts to an evasion of the payment of duty. The provisions of s 234(2)(a) of the Act clearly contemplate that a person may be guilty of an offence contrary to s 234(1)(a) in a situation in which duty would have become payable upon the entry of the goods for home consumption, but that has not happened. This provision provides for the penalty payable in a situation in which:

    … the Court can determine the amount of the duty on goods the payment of which would have been evaded by the commission of the offence if the goods had been entered for home consumption …

    That provision clearly assumes that there will be a situation in which the prosecution for evasion is based upon conduct that avoided the entry for home consumption being made. 

26. I am satisfied that the Magistrate correctly found Mr Clarke guilty on count 3.  I dismiss the appeal against the conviction.

27. Some other points were argued on appeal to which I should refer briefly. Mr Agresta submitted that taped recordings of conversations between Mr Clarke and Customs Officers should have been excluded because the whole of the conversations were not recorded and because the provenance of the tapes was not properly established. There is no substance in that submission, and I do not accept it. He argued that the Magistrate relied upon averments as to matters of law, referring to s 255(2)(b) of the Act which provides that averments are to be prima facie evidence of facts only. I am satisfied that the convictions are soundly based on facts proved in evidence or by averments as to matters of fact only, and that there was no need for the Prosecutor to rely on averments as to any matters of law or mixed law and fact.

28. Finally, there was a complaint about the order as to costs.  The Magistrate made an order for costs in favour of the Prosecution in the sum of $35,000.  The Prosecution had claimed an amount slightly in excess of $41,000.  The Prosecution extended over some 14 days, between August 2002 and the last hearing day on 23 July 2004, judgment being delivered on 14 January 2005.  The case seems to have been unduly protracted, but the reasons for that are not known to me.  The complaint is that the costs are manifestly excessive, bearing in mind that this was a summary trial.  There was a suggestion that the Magistrate should have applied a scale of fees applicable in the Magistrates Court, but it was pointed out by Mr Barnett that that scale came into force when the trial was almost at an end.  Costs were in the discretion of the Magistrate, and having regard to the length of the trial the amount, although substantial, does not appear obviously excessive.  Mr Agresta did not attack any particular aspect of the amount, and in those circumstances I am not persuaded that the Magistrate has erred in the exercise of his discretion.

29. For all those reasons the appeal must be dismissed.