Geoffrey William Rowling and Dialaphone Communications Pty Ltd v Peter Murray No. SCGRG 92/2778 Judgment No. 4132 Number of Pages 8 Customs

[1993] SASC 4132

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Customs - Prosecution - Amendment of complaint - Whether power to amend authorities amendment in form of additional count on complaint. Customs Act1901 (Cth) s.251 and Justices Act 1921 (SA) s.51. Linehan v Public Service Association (1982) 44 ALR 289, Christie v Templeton (1929) 29 VLR 350 and Schenker and Co (Aust) Pty Ltd v Sheen (1983) 48 ALR 693, applied.

HRNG ADELAIDE, 24 March 1993 #DATE 12:11:1993
Counsel for appellants:     Mr R Bleechmore
Solicitors for appellants:    Mr R Bleechmore
Counsel for respondent:     Mr S V Cullimore
Solicitors for respondent:    Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 DEBELLE J The appellants were convicted in the Adelaide Magistrates Court with three offences against the Customs Act, 1901. They have appealed against the convictions and penalties imposed. The appellant Rowling is managing director of Dialafone Communications (Aust.) Pty Ltd ("Dialafone"). The appellant company carried on business from premises at 219 Gilbert Street, Adelaide, selling telephone equipment of various kinds. They were both initially charged on two separate complaints with the following offences:
     1. Between about December 1989 and March 1990 having in
    their possession prohibited imports, namely various cordless
    telephones, contrary to s.233(1)(d) of the Act.
     2. Between about December 1989 and about March 1990 unlawfully
    conveyed prohibited imports, namely various cordless telephones
    contrary to s.233(1)(d) of the Act by selling and delivering the
said cordless telephones to various persons. 1. The appellants pleaded not guilty. The prohibited goods in each count were two cordless telephones. 2. At the hearing of the complaint, the appellants were first represented by a solicitor, Mr Armour. By consent, the complaints were heard together. The hearing commenced on 12 August 1991 and continued on 13 August. On 13 August an adjournment was granted to enable a prosecution witness to produce the second part of a document produced in the course of evidence. The adjournment was granted over the objection of the appellant's solicitor. The matter was listed on a number of later occasions but the hearing did not proceed with further evidence until 11 May 1992 when Mr Rowling appeared unrepresented on his own behalf and on behalf of the company. Further evidence was taken on 11 and 12 May 1992 from prosecution witnesses and Mr Rowling. 3. At the close of the defence case on 12 May, the matter was adjourned for submissions on 24 June 1992. Immediately before the adjournment and after the defence case had closed, counsel for the prosecution obtained leave to make a formal amendment to counts 1 and 2. He also sought leave to add an additional count to the complaint against each appellant, namely, a charge of importing cordless telephones contrary to s.233(1)(b) of the Customs Act. He called in aid s.251 of the Act. The magistrate did not rule on the application but advised Mr Rowling to make a note of the relevant sections and to obtain legal advice concerning the prosecutor's application to add the third count. When the matter resumed on 24 June 1992, Mr Rowling was again unrepresented and appeared on his own behalf and on behalf of the company. 4. On 24 June 1992 counsel for the prosecution pressed his application to add the third count to the complaint against each appellant and obtained leave to do so. The amendment was in identical terms, namely: "Between about July 1989 and about November 1989 imported prohibited imports namely two cordless telephones contrary to s.233(1)(b) of the Customs Act." 5. Thus, after the amendment had been allowed, the three charges could be shortly stated to be having possession of prohibited imports, selling prohibited imports, and importing prohibited imports. Counsel for the prosecution also sought and obtained leave on that occasion to add fresh particulars to count 2 of the complaint against each of the appellants. One of the grounds for appeal is that the learned magistrate erred in granting leave to amend each complaint by the addition of count 3. There is no appeal from the amendments to the particulars in respect of count 2. 6. The magistrate convicted each of the appellants on all three charges and imposed the following penalties on Mr Rowling. In respect of count 1 she imposed a fine of $500 and ordered court fees of $62 to be paid. She did not impose a penalty in respect of count 2. In respect of count 3 she ordered a fine of $2,500. No penalty was imposed on the company other than an order to pay $62 court fees. The magistrate also ordered Mr Rowling to pay $350 by way of reparation to the purchasers of one of the cordless telephones. 7. On the hearing of this appeal, Mr R. Bleechmore of counsel, who is apparently an acquaintance of Mr Rowling, sought leave to appear, not as counsel for the appellants, but as amicus curiae. Mr Rowling had suffered injuries in a boating accident including severe head and brain injuries. Mr Bleechmore sought to assist in whatever way he could. There were reasons why he was unable to appear as counsel for the appellants. There is no occasion to examine those reasons now. There being no objection, I permitted Mr Bleechmore to appear as amicus curiae. He presented a number of arguments on behalf of the appellants. When he concluded Mr Rowling made some brief submissions on his own behalf and on behalf of the company. The appellants' notice of appeal did not specify with any particularity the grounds on which it was said that the convictions were wrongly made. Mr Bleechmore had prepared helpfully amended grounds of appeal. By consent the notice of appeal was amended to included those new grounds. 8. The first two grounds of appeal are to the effect that the learned magistrate had erred in finding that the cordless telephones were prohibited imports. 9. Section 51 of the Customs Act defines prohibited imports to be goods, the importation of which is prohibited under s.50 of the Act. Section 50 of the Act authorises the Governor-General by regulation to prohibit the importation of goods into Australia. Regulation 4P of the Customs (Prohibited Imports) Regulations prohibits the importation into Australia of cordless telephones. The relevant provisions are sub-regulations (2) and (3) which provide:,
     "(2) The importation into Australia of a cordless telephone
    or a relevant component of a cordless telephone is prohibited
    unless -
     (a) the permission in writing of the Minister or an authorized
    officer to import the cordless telephone or the relevant
    component, as the case requires, is produced to the Collector; or
     (b) the cordless telephone or the relevant component is of a
    kind specified in an approval given and in force under
    sub-regulation (3).
     (3) The Minister may, by notice published in the Gazette,
    approve the importation into Australia of the following:
     (a) cordless telephones of a specified kind;
     (b) relevant components of cordless telephones, being relevant
    components of a specified kind." 10. Neither Mr Rowling nor Dialafone held permission in writing to import a cordless telephone nor did the cordless telephones imported by them fall in a class approved pursuant to sub-regulation (3). It is possible to import cordless telephones pursuant to a test permit issued in s.10 of the Radiocommunications Act, 1983. Mr Rowling had applied for a permit to import one cordless telephone from Hong Kong. The application was dated 15 July 1989. He paid the necessary fee. He was asked to supply serial numbers for the units he sought to import. Despite a number of requests, he failed to do so. On 8 February 1990 the Department of Transport and Communications wrote advising him that his application could not be issued in the light of his failure to supply the serial numbers of the cordless telephones. He was refunded the fee of $63 and no permit was issued. 11. In the meantime, a parcel containing two cordless telephones had been sent from Hong Kong to Dialafone. The parcel was held at the Postal Customs division at the Adelaide Mail Exchange. On 9 November 1989 Mr Rowling paid the duty and received the parcel of goods. Given that the parcel contained prohibited imports, the parcel should not have been released to him except upon production of either a test permit or permits documents held pursuant to Regulation 4P or unless they were in an approved class of cordless telephones. The appellant submitted that, as the cordless telephones had been cleared through Customs, they were not prohibited imports. This submission must plainly fail. Neither Mr Rowling nor Dialafone held a test permit nor did they hold any authorisation under the Customs Act or the regulations made thereunder to import these two telephones. The telephones were not of an approved kind. The fact the telephones were mistakenly or inadvertently cleared through Customs does not in any way alter the status of the telephones. At all times they remain prohibited imports. These grounds of appeal must fail. 12. The next ground of appeal is that the learned special magistrate erred when she found that the state of mind of the appellants at the time of receiving the cordless telephones from Customs was a factor to be taken into account in determining whether the goods were prohibited imports for the purposes of the Act. The ground relates to the fact that the magistrate believed that s.233(2) of the Act provided a defence if the appellants could establish that they had a reasonable excuse for having the cordless telephones in their possession. Section 233(2) provides: "It shall not be lawful for any person to convey or have in his possession without reasonable excuse (proof whereof shall lie upon him) any smuggled goods or prohibited imports." 13. It is doubtful whether s.233(2) provides a defence to a charge under s.233(1). However, even if it is assumed that it does, I think the learned magistrate was correct in holding that the defence had not been proved. Mr Rowling had been engaged in the business of selling telephones and other telephone equipment since 1978. Dialafone was incorporated in 1980. In 1988 Mr Rowling had suffered severe injuries in the boating accident to which I have referred. He had been absent from work for six months and he said that, while in hospital, he had been cheated and defrauded by his staff. None of these matters served to exculpate the appellants or constituted evidence that either had a reasonable excuse for having these two cordless telephones in their possession. Mr Rowling knew that the telephones could only be imported pursuant to the Customs (Imported Goods) Regulations or under a test permit. The fact that he was able to secure the Customs clearance for the telephones could be described as a piece of good fortune but, given his knowledge as to what was required for importation, he had not proved that there was a reasonable excuse for him or the company having prohibited goods in their possession. It is clear from the reasons for judgment of the learned magistrate that she did not accept the explanations put forward. She concluded that Mr Rowling had not demonstrated on credible evidence that he reasonably believed (or had ever believed) that the cordless telephones were not prohibited imports and that he had not made out a reasonable excuse under s.233(2). These findings were entirely open upon the evidence and I do not believe there is any ground to interfere with them. 14. A further ground of appeal is that the learned magistrate erred in finding the charges proved. For like reasons, this appeal must fail. There was ample evidence on which the learned magistrate could properly find the charges proved. It was also contended that the learned magistrate had failed to find the charges proved beyond reasonable doubt. This was a reference to the fact that at the latter part of her reasons, the magistrate had stated that she found that prosecution had proved certain matters and did not state that she found them proved beyond reasonable doubt. A fair reading of her reasons discloses that the magistrate was under no misapprehension as to the standard of proof and this ground of appeal also fails. 15. Another ground of appeal concerns the convictions under count 3 of each complaint, added by amendment after the appellants had each closed their case. The prosecution counsel had called in aid s.251 of the Customs Act which provides:
    "No objection shall be taken or allowed to any information,
    summons or other originating process for any alleged defect
    therein in substance or in form or for any variance between such
    information, summons or other originating process and the
    evidence adduced at the hearing in support thereof, and the Court
    shall at all times make any amendment necessary to determine the
    real question in dispute or which may appear desirable, and if
    any such defect or variance shall appear to the Court to be such
    that the defendant has been thereby deceived or misled it shall
    be lawful for the Court upon such terms as it may think just to
adjourn the hearing of the case to some future day." 16. In her reasons for judgment, the learned magistrate referred to the fact that leave had been granted to amend the complaints but did not give reasons for her decision beyond noting two decisions referred to by counsel for the prosecution, Christie v Templeton (1929) 29 VLR 350 and Schenker and Co (Aust) Pty Ltd v Sheen (1983) 48 ALR 693. Neither is relevant as they do not deal with amendments in the form of an additional charge. 17. Section 251 is expressed widely. In common with a number of like provisions (for example, s.15(c) of the Crimes Act, 1914 (Cth), formerly s.21a of the Crimes Act, and s.183 of the Justices Act, 1921 (SA)) the intention is that technicality should be disregarded and regard should be had to the substantial merits and justice of the case: Crafter v McKeough (1943) SASR 371 at 375. The power may be exercised to amend a charge to a different offence but only in the sense of an offence which is differently described or stated and so long as the pith and substance of the charge remains constant: Crafter v McKeough (supra), Schultz v Pettit (1980) 25 SASR 427; and Camilleri v Wilkinson (1983) 11 A Crim R 30. But it is not necessary here to examine the extent of the power to substitute one charge for another because the amendment in this case was the addition of a further charge. 18. The terms of s.251 are addressed to defects between the charge in the information or other originating process and the evidence adduced. There is nothing in s.251 which expressly authorises the addition of a fresh charge. Nor is there an implied authority to do so. While the intention of s.251 is to avoid unnecessary technicality and to promote the interests of justice, because the power to add an additional charge would expose the accused person to the risk of an additional liability, express authority is required. In other words, the purpose of s.251 is to correct errors. It is not its purpose to add charges to those already in the complaint. 19. In my view, in order to bring an additional charge against the defendants, the prosecution would have had to proceed by way of a fresh complaint, which in the circumstances of this case would have to have been heard separately. Section 248 of the Customs Act provides, inter alia: "Subject to provisions of this Act the provisions of the law relating to summary proceedings in force in the State or Territory where the proceedings are instituted shall apply at all Customs prosecutions before a Court of summary jurisdiction in a State or Territory..." 20. By virtue of s.248, if not otherwise, the provisions of the Justices Act, 1921 (SA), apply to this prosecution. Section 51 of the Justices Act authorises the joinder in the same complaint of charges for any number of offences, if the charges arise out of the same set of circumstances. Section 51, therefore, modifies the rule taken from s.10 of the English Summary Jurisdiction Act, 1848, which provided that every complaint shall be for one matter of complaint only, a rule which operated in South Australia until 1943 when s.51 was amended to read in its present form. I do not think that the terms of s.51 either standing alone or when read with s.251 are wide enough to permit the addition of an additional charge after the close of the case for the defence. 21. Section 51 speaks of the form of the complaint at the outset of the hearing. It does not address joinder of charges at some later stage. Further, to allow amendments to a complaint to include an additional charge as late as the close of the case for both the prosecution and the defence would defeat the purposes of the complaint, namely, to give the defendant proper notice of the offence with which he is charged and thereby enable him to prepare his defence to meet that charge. As Fitzgerald J said in Linehan v Public Service Association (1982) 44 ALR 289 at 308:
    "One cardinal doctrine which has long been recognized and,
    given effect to has been the requirement that a defendant should
    be fully and fairly informed of the allegations against him: see,
eg, Smith v Moody (1903) 1 KB 56 at 61, 62; (1900-3) All ER Rep
    Ext 1274 at 1277, 153; Total Australia Ltd v Trade Practices
Commission (1975) 8 ALR 153. Thus, adequate particularity and
    clarity have been insisted upon. This has, in turn, served the
    purpose of ensuring that only admissible evidence is received,
    and that the defendant has ample opportunity to object to what is
    inadmissible." 22. Reasons why the addition of a fresh charge at a later stage of the hearing is objectionable include the fact that inadmissible evidence in relation to that charge could have been admitted or the defendant might have wished to cross-examine witnesses on questions pertaining to that charge. The conduct of the defence might also have been different as events at this hearing amply demonstrated. In the course of his evidence and without any warning as to the risks of self-incrimination, Mr Rowling had admitted importing the telephones. The defence might have been conducted quite differently had both appellants known that they were to be charged with importing prohibited goods. There is, therefore, no warrant in either s.51 or s.251 for amending a complaint to add a further charge after the close of both the prosecution and defence case. 23. It appears that a defendant may consent to charges upon different informations or different complaints being heard together and, in the absence of consent, a court may order them to be heard together: Munday v Gill (1930) 44 CLR 38, per Dixon J at 89-90, Addlem v Watson (1932) VLR 461, Clayton v Chief Constable of Norfolk (1983) 2 AC 473, R v Davidson (1984) 12 A Crim R
289 and R v Bennett (1987) 79 ACTR 1. Those are decisions where there was no equivalent provision to s.51 of the Justices Act which, in my view, describes the only circumstances in which different charges may be heard together. 24. For these reasons the third count was improperly added to the complaints. The conviction in respect of that count must, therefore, be set aside in the case of both the appellants. 25. I turn to the appeals against penalty. These concern Mr Rowling only as the company was ordered to pay court costs only. Penalties were ordered in respect of counts 1 and 3. No penalty was ordered in respect of count 2. Given that the conviction under count 3 must be set aside, the penalty in respect of that count must also be set aside. The learned magistrate would not have convicted Mr Rowling without penalty on count 2 if she had refused the application to add count 3. I do not think there is any reason to remit the case to the learned magistrate to fix the penalty and thus put the parties to further costs. I think that the justice of the case requires that I should hear counsel as to the proper penalty to be imposed on count 2. 26. The only penalty remaining is in respect of count 1 which Mr Rowling was ordered to pay a fine of $500, court costs of $62 and to pay reparation to the purchaser of one of the cordless telephones. Given that the maximum penalty for this offence is a fine of $50,000 and the deliberate nature of the offending, the penalty cannot in any sense be described as manifestly excessive. There is no appeal in respect of the order for reparation. The appeal against penalty in respect of count 1 must, therefore, be dismissed. 27. For these reasons I allow the appeal. The convictions and orders made by the learned magistrate are varied to the extent that the convictions and orders recorded in respect of count 3 against each appellant are set aside. I will hear the parties as to the penalty on count 2.