Jiang v The Chief Executive Officer of Customs
[2000] FCA 1378
•5 SEPTEMBER 2000
FEDERAL COURT OF AUSTRALIA
Jiang v The Chief Executive Officer of Customs [2000] FCA 1378
JURISDICTION – no jurisdiction to hear application for judicial review by a person who is a defendant in a prosecution for an offence against a law of the Commonwealth in relation to a related criminal justice process decision – whether proceedings in District Court are part of the ordinary criminal justice process or a special customs prosecution
Customs Act 1901 (Cth) ss 233, 233AB, 234, 236 244, 245, 247, 255
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 9A
Judiciary Act 1903 (Cth) s 39BComptroller-General of Customs v D’Aquino Bros Pty Ltd (1996) 135 ALR 649
Mallen v Lee (1949) 80 CLR 198
Bainbridge-Hawker v Minister for State for Trade and Customs (1958) 99 CLR 521ALAN JIANG AND LI YING V THE CHIEF EXECUTIVE OFFICER OF CUSTOMS, COLIN MARK BULLOCH, MELANIE JANE OLSON AND WENDY ELDER
N 612 OF 2000
JUDGE: BEAUMONT J
DATE: 5 SEPTEMBER 2000
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 612 OF 2000
BETWEEN:
ALAN JIANG
FIRST APPLICANTLI YING
SECOND APPLICANTAND:
THE CHIEF EXECUTIVE OFFICER OF CUSTOMS
FIRST RESPONDENTCOLIN MARK BULLOCH
SECOND RESPONDENTMELANIE JANE OLSON
THIRD RESPONDENTWENDY ELDER
FOURTH RESPONDENTJUDGE:
BEAUMONT J
DATE OF ORDER:
5 SEPTEMBER 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The preliminary question –
“Whether the Court has jurisdiction to hear and decide the applicant’s notice of motion dated 13 June 2000.”
be answered, yes.
2.The first, second and third respondents pay the applicants’ costs of the separate question.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 612 OF 2000
BETWEEN:
ALAN JIANG
FIRST APPLICANTLI YING
SECOND APPLICANTAND:
THE CHIEF EXECUTIVE OFFICER OF CUSTOMS
FIRST RESPONDENTCOLIN MARK BULLOCH
SECOND RESPONDENTMELANIE JANE OLSON
THIRD RESPONDENTWENDY ELDER
FOURTH RESPONDENT
JUDGE:
BEAUMONT J
DATE:
5 SEPTEMBER 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(ON PRELIMINARY QUESTION)BEAUMONT J:
INTRODUCTION
Before the Court is a preliminary question as to the Court’s jurisdiction to hear and determine this matter. In order to understand the nature of the preliminary question, reference needs to be made to some background as follows.
By his ordinary statement of claim filed in the District Court of New South Wales on 22 December 1998, the Chief Executive Officer of Customs (“the CEOC”) (the first respondent in this matter), as plaintiff, claimed against JFA International Pty Ltd (“JFA”) as first defendant; against Alan Jiang (the first applicant in this matter), as second defendant; and against Li Ying (the second applicant in this matter), as third defendant the following relief, namely:
“$180,000.00 in pecuniary penalties in respect of the cause of action pleaded overleaf and seeks the conviction of each of the Defendants for offences against the Customs Act, 1901, plus reparations, interest and costs.”
The CEOC pleaded his cause of action relevantly as follows.
“…
4.At all material times the Second Defendant was a person who gave instructions to the First Defendant, its employees, officers and agents to perform the acts pleaded and averred, and did manage the First Defendant.
6.At all material times the Third Defendant was a person who gave instructions to the First Defendant, its employees, officers and agents to perform the acts pleaded and averred, and did manage the First Defendant.
…
8.By reason of the knowledge of the Second and Third Defendants pleaded and the management of the First Defendant by the Second and Third Defendants, the Second and Third Defendants had full knowledge of each of the matters pleaded and averred.
9.The conduct of the second and Third Defendants was within the authority conferred on the Second and Third Defendants by the First Defendant.
10.During 1998 the First Defendant
(a)smuggled goods;
(b)evaded payment of customs duty payable on the importation of the goods, and
(c)knowingly omitted from statements made to a customs officer matters without which the statements were misleading in a material particular.
in contravention of the Customs Act, 1901 (“the Act”), and the Plaintiff charges hereinbelow that the First Defendant committed offences in those terms against the Act, being, respectively, offences under sections 233(1)(a), 234(1)(a) and 234(1)(d)(ii) of the Act.
…”In his pleading, the CEOC stated that he pleaded and averred pursuant to s 255 of the Customs Act 1901 (Cth) (“the Act”) his cause of action in the terms I have mentioned. By s 255 of the Act it is provided that 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 (s 255(1)). By s 244 of the Act, proceedings by the Customs for the recovery of penalties with some immaterial exceptions are referred to in the Act as “Customs Prosecutions”.
As has been noted, the statement of claim relied upon ss 233 and 234 of the Act and their provisions should be mentioned. Part XIII of the Act contains “Penal Provisions”. Division II of Part XIII deals with “Penalties”. Section 233 deals, inter alia, with “Smuggling and unlawful importation”. It is there relevantly provided that a person shall not smuggle any goods (s 233(1)(a)). It is further provided that a person who contravenes s 233(1)(a) is guilty of an offence punishable upon conviction as provided by s 233AB(1) (see s 233(1AA)).
Section 233AB deals with, inter alia, “Penalties for offences against s 233”. It is there relevantly provided by subsection (1) that where an offence is punishable as provided by this subsection the penalty applicable to the offence is: (a) where the Court can determine the amount of the duty that would have been payable will be a penalty not exceeding five times and not less than two times that amount; or (b) where the court cannot determine that amount a penalty not exceeding $50,000.
Section 234 deals with “Customs offences” by providing:
·A person shall not evade payment of any duty which is payable or knowingly or recklessly omit from a statement to an officer any matter or thing without which the statement is misleading. (See s 234(1)(a) and (d)(ii)).
·A person who contravenes s 234(1)(a) is guilty of an offence punishable upon conviction upon the same footing as provided by s233(1AA). (See s 234(2)).
·Where a person who contravenes s 234(1)(d) is convicted of an offence a court may impose a penalty not exceeding $5000 and twice the amount of the duty payable (s234(3)).
Reference is also made in the statement of claim to s 236 of the Act. That provision deals with “aiders and abettors”. It provides that whoever aids, abets, counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against the Act shall be deemed to have committed such offence and shall be punishable accordingly.
The statement of claim gives particulars of the facts relied upon which are said constitute the offences pleaded.
With respect to the relief sought, the statement of claim states:
“ORDERS SOUGHT
AND THE PLAINTIFF CLAIMS:-
(i)The First Defendant
A.The conviction of the First Defendant for an offence contrary to section 233(1)(a) of the Customs Act, 1901.
B.The conviction of the First Defendant for an offence contrary to section 234(1)(a) of the Customs Act, 1901.
C.The conviction of the First Defendant for an offence contrary to section 234(1)(d)(ii) of the Customs Act, 1901.
(ii)The Second and Third Defendants
D.The conviction of each of the Second and Third Defendants for an offence contrary to section 233(1)(a) of the Customs Act, 1901 through section 236 of the Customs Act.
E.The conviction of each of the Second and Third Defendants for an offence contrary to section 234(1)(a) of the Customs Act, 1901 through section 236 of the Customs Act.
F.The conviction of each of the Second and Third Defendants for an offence contrary to section 234(1)(d)(ii) of the Customs Act, 1901 through section 236 of the Customs Act.
(iii)All Defendants
G.An order for the recovery of penalties against the First, Second and Third Defendants pursuant to the Customs Act, 1901.
H.An order for reparations to be paid by the First, Second and Third Defendants pursuant to section 21B of the Crimes Act, 1914.
I.Costs
J.Interest
K.Such Further or other orders as this Honourable Court deems fit.”
The District Court proceedings have not yet been heard. By notice of motion dated 13 June 2000, and filed in the Registry of this Court on that date by way of commencement of this matter, Mr Jiang and Ms Ying gave notice of their intention to move the Court for an order extending the time for filing an application for judicial review of several decisions made under the Act.
The foreshadowed application for judicial review is explained, and the grounds proposed to be relied upon in that connection are stated in a draft application for review, tendered before me as Exhibit 2 and which is annexed to these reasons for ease of reference. It will be seen that the draft application seeks review judicially of several decisions made to issue and execute warrants under the provisions of s 198 of the Act, those warrants having issued in October 1998. (By s 198 it is provided that a judicial officer may issue a warrant to search premises in the circumstances there mentioned (see s198(1)). It is further provided that the judicial officer is also to state in the warrant that it authorises the seizure of certain things there described (see s 198(4)).)
The draft application for judicial review seeks, inter alia, declarations that the warrants were invalid; and injunctions restraining inspection or use of documents apparently seized in the execution of the warrants. Relief is sought not only under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”), but by way of prerogative relief. (I note here in passing that, as was pointed out in argument, an extension of time is not necessarily required in the case of an application for prerogative relief. However, there are, of course, time limits for the bringing of an application under the provisions of the AD(JR) Act, so that nothing turns on the absence of any need for an extension of time in the case of the claim for prerogative relief.)
The first, second and third respondents, who are Customs Officers, object to the competency of any application for judicial review in the present connection. The fourth respondent, who issued the warrants, has filed, appropriately, a submitting appearance. By their notice of motion dated 31 July 2000 the first, second and third respondents have now moved the Court for the determination of the following preliminary question:
“… whether the Court has jurisdiction to hear and decide the applicant’s notice of motion dated 13 June 2000.”
On 31 July 2000 I ordered that this question be determined as a preliminary (i.e. separate) question.
THE CONTENTIONS OF THE FIRST, SECOND AND THIRD RESPONDENTS
On behalf of these respondents the following is submitted:
·The present applicants are defendants in the District Court proceedings. Those proceedings were commenced on 22 December 1998 and are still on foot. Those proceedings are a prosecution of the defendants for offences against the laws of the Commonwealth, namely, s 233(1)(a), s 234(1)(a) and s 234(1)(d)(ii) through s 236 of the Act.
·As well as the foregoing provisions of the Act, reference is made to ss 244, 245 and 247 of the Act in support of the proposition that the District Court proceedings are, in fact, prosecutions of the applicants for offences against laws of the Commonwealth. (Section 244, as already noted, is an interpretation provision. By s 245 it is provided that customs prosecutions “may be instituted by the CEO in the name of the office of the CEO by action, information or other appropriate proceeding” in the several courts of the States and Territories there mentioned. By s 247 it is provided that every customs prosecution in one of the courts previously mentioned “may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge”.)
·Accordingly, the Court is deprived of jurisdiction to deal with the application under the AD(JR) Act, as amended by Act No. 57 of 2000; that is, by the insertion of s 9A(1).
By s 9A(1) it is provided:
“(1) Subject to subsection (2), at any time when:
(a)a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court; or
(b)an appeal arising out of such a prosecution is before any court;
no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.”
By s 9A(2) it is provided as follows:
“(2)Subsection (1) does not apply if an applicant has commenced an application under this Act before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.”
·The proceedings in the District Court are “a prosecution for an offence against a law of the Commonwealth” within the meaning of s 9A and the present matter is an application “in relation to a related criminal justice process decision” within the meaning of s 9A.
(“Related criminal justice process decision” is relevantly defined by s 9A(4) as follows:
“(a)a decision in connection with the investigation, committal for trial or prosecution of the defendant; and
…
(c)a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; …”)
·The present matter was not commenced in this Court until 13 June 2000. However, the operation of s 9A commenced on 13 May 2000, being the date of assent of Act No. 57 of 2000 (See s 2(1) of that Act).
·The Court is further deprived of jurisdiction to deal with the application under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) by virtue of an amendment similar to that made to the AD(JR) Act, the amendment being made to the Judiciary Act by Act 57 of 2000 by the insertion of a new provision s 39B(1C). For present purposes, it may be taken that this provision is, in all relevant respects, to the same effect as the amendment made to the AD(JR) Act.)
·It follows that the Court is deprived of jurisdiction in the present matter and there is no basis upon which the accrued, attached or associated jurisdiction of the Court could be invoked.
CONCLUSIONS ON THE PRELIMINARY QUESTION
In the Second Reading Speech for the Bill amending the AD(JR) Act and the Judiciary Act the Minister, in explaining the object of s 9A, said:
“Schedule 2 to the Bill: Review of Decisions in Criminal Process
Schedule 2 to the bill deals with the judicial review of the decisions under federal laws in federal, state and territory courts, but in the specific context of criminal prosecution.
The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies. (emphasis added)
Schedule 2 to the bill contains amendments of the Administrative Decisions (Judicial Review) Act 1977, the Corporations Act 1989 and the Judiciary Act 1903 that will, in federal criminal matters, restrict defendants’ access to administrative law remedies.
Defendants will not be able to use the ADJR Act to challenge decisions to prosecute. Nor will they be able to use that act to challenge other decisions in the criminal justice process after a prosecution or appeal has commenced.
Further, defendants in state and territory courts will not be able to rely on section 39B of the Judiciary Act to bring an application in the Federal Court to review decisions of Commonwealth officers made in the prosecution process. The 39B jurisdiction will in that case be removed from the Federal Court and conferred on state and territory supreme courts.
Section 39B of the Judiciary Act is currently a provision of general application which allows Federal Court action for mandamus, prohibition or an injunction against an officer of the Commonwealth. This same jurisdiction is constitutionally entrenched as part of the High Court’s original jurisdiction under section 75(v) of the Constitution.
If the 39B jurisdiction in relation to prosecutions in state and territory courts were not removed from the Federal Court, and conferred instead on state and territory supreme courts, the opportunity to disrupt and delay those prosecutions by repeated, unmeritorious applications to a different court system – in this case the Federal Court system – would remain.
The expectation is that there will be significant advantage in requiring all decisions relating to the criminal justice process to be made in the system in which the prosecution is brought.
Without reducing fairness or access to justice, the expectation is that the transfer of jurisdiction will contribute to increased efficiency, and reduction in costly delays which may otherwise result from access to two court systems.”
In my opinion, this explanation of the legislation makes it clear, if clarification was indeed called for, that the objective, or mischief at which the amendment was aimed, was to prevent the frustration of the ordinary criminal justice process by the bringing of collateral proceedings by way of judicial review of administrative action. I emphasise in this connection the notion of the ordinary criminal justice process. For, in my view, the proceedings brought in the District Court should not be viewed as part of the ordinary criminal justice process, but rather as action taken in the form of a special customs prosecution.
I say this notwithstanding that in the statement of claim, as has been noted, one form of relief sought is reparation for offences under s 21B of the Crimes Act 1914 (Cth). By that provision, where a person is convicted of an offence against the law of the Commonwealth, the Court may, in addition to the penalty, if any, imposed upon the person, order the offender to make reparation to the Commonwealth, or to a public authority under the Commonwealth, or to any person. Section 21B(2), provides, however, that a person is not to be imprisoned for a failure to pay an amount required to be paid under s 21B(1). But it seems to me that the inclusion of that particular claim for relief (under s 21B) does not deprive the proceedings in the District Court from their true character which, in my opinion, is that of a special customs prosecution.
It is true that the language of s 9A (and the Judiciary Act equivalent) consists of the composite phrase “prosecution for an offence against a law of the Commonwealth”. It is also true that the relevant provisions of the Act (to which reference has been made) refer to a conviction for an offence and to punishment in that connection. However, even if the matter is divorced from its special customs context (a matter to which I will return), the authorities make it clear that the concept or notion of a “prosecution” will depend upon the particular context in which the question arises. (See, e.g., Yates v R (1885) 14 QBD 648; Hausmann (1909) 3 CAR 3 at 5; Mohamed Amin v Jogendra Kumar Bannerjee [1947] AC 322 at 330-1; Naismith v McGovern (1953) 90 CLR 336; Shepherd v Griffiths (1985) 60 ALR 176 at 184-5; Jack Brabham Holdings v Minister (1988) 85 ALR 640.) The ambiguities that may arise in this connection are, perhaps, attributable to the history of the evolution of the word “prosecution”, described by Brian A Garner in his Dictionary of Modern Legal Usage at 443. Similarly, the authorities show that the notion or concept of the idea of an “offence” can be ambiguous and, again, will depend upon the context. (See Re Derbyshire County Council & Derby Corporation [1896] 2 QB 57 per Collins J at 58, affirmed [1896] 2 QB 297, affirmed in the House of Lords [1897] AC 550; Brown v Allweather Mechanical Grouting Company Ltd [1954] 2 QB 443 at 446; R v Barlow (1997) 188 CLR 1 at 9; E J Cooper, “The Quasi-Criminal Federal Jurisdiction” (1970) 44 ALJ 365 at 370.) However, I need not, for the reasons I am about to give, explore the proper technical meaning of “prosecution” or of “offence”.
In the present statutory context, in my view, the reference in Act No. 57 of 2000 to the “criminal justice process” is intended to pick up criminal proceedings in the ordinary sense and this conclusion is, I think, reinforced by reference to the explanation of the aim of the legislation given in the Second Reading Speech.
That being so, the critical question becomes whether the proceedings in the District Court can be described as ordinary criminal proceedings. In my opinion, they may not be so described. In my view, those proceedings are a special form of statutory prosecution which the Department has chosen to bring as a matter of its own election. As Hunt CJ at CL observed in Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649 at 653:
“The present position is that breaches of the Customs Act may be prosecuted either as ordinary criminal offences or by way of a procedure of ‘a somewhat peculiar character’ called a customs prosecution.”
His Honour cites as authority for that proposition the observations of Latham CJ in Mallen v Lee (1949) 80 CLR 198 at 206. Latham CJ went on to observe (at 209) the following:
“Thus the proceedings may assume a civil form or a criminal form – see Attorney-General v. Casey …. If proceedings are instituted in a court of summary jurisdiction (as in the present case) there is nothing to distinguish the proceedings from any other proceedings for an offence. If proceedings were instituted in the Supreme Court or the High Court they might assume a civil form or, in accordance with the directions of the Judge, a form more nearly approaching to that of criminal proceedings. The case of R. v. Justices of Appeals Committee … where the Court followed Seaman v. Burley … and declined to follow Sherry’s Case … supports the conclusion that in this case the proceedings before the magistrate are criminal.”
That is to say, proceedings to recover and enforce a penalty of the kind in question here may be either civil or criminal proceedings, depending upon the nature of the procedure used to initiate them. When the proceeding to recover a penalty is a civil proceeding, it remains a civil proceeding notwithstanding that it is penal in nature. (See Australian Securities Commission v Kippe (1996) 137 ALR at 430; see also Sir Frederick Jordan, “Select Legal Papers, General Principles of the Administration of Justice” at 27-8.)
In his work “Customs and Excise Law”, E J Cooper describes court procedures in this connection in chapter 21. After noting that ordinary criminal proceedings were outside the scope of the work, save where special considerations arise as to selection of jurisdiction, the author goes on to note (at 320) the number of special prosecution procedures which are available. As the author points out, such prosecutions are based on age old procedures, fully described by Else-Mitchell J in Collector of Customs v Reiken (1964) 81 WN (NSW) 483. The author goes on to note (at 321) that if the civil jurisdiction is exercised, the special “quasi-criminal procedures” in the legislation are available and averments may be used; the informant is defined, the defendant has certain elections and other consequences ensue. As the author notes, the development of the common law has markedly restricted the circumstances in which the quasi-criminal proceedings may be used. In the United Kingdom, they were brought to an end by the passage of s 33 of the Finance Act 1953 (UK). They continue, however, in Australia.
The point was emphasised in Bainbridge-Hawker v Minister of State for Trade and Customs (1958) 99 CLR 521. Williams J, at first instance, said (at 528):
“Proceedings under Pt. XIV of the Customs Act instituted in the name of the Minister or in the name of the collector are proceedings instituted on behalf of Her Majesty. The section provides that customs prosecutions may be instituted in the name of the Minister. It does not provide that they shall be so instituted. They could still be instituted, I should think, in the name of Her Majesty for Her Majesty may participate in legal proceedings jure coronae either in her own person or by proper officers appearing on her behalf and this prerogative right could only be taken away by clear words. Indeed it was once the practice in this Court for customs prosecutions in the High Court to be instituted in the name of the King and of the Minister administering the customs.”
An appeal from his Honour’s decision was dismissed by the Full High Court. Dixon CJ said (at 544):
“Section 244, with which Pt. XIV of the Customs Act commences, provides that proceedings for the recovery of penalties under that Act and certain other proceedings are to be therein referred to as customs prosecutions. Section 245, although it was enacted two years before the passing of the Judiciary Act 1903 by which the notional existence of this Court under the Constitution was converted into an actual existence, provided that customs prosecutions may be instituted in the High Court of Australia or in the Supreme Court of any State. If the prosecution is for a penalty not exceeding £500, or the excess is abandoned, it may be instituted in a county district or local court or a court of summary jurisdiction. It is to be noticed that the section is expressed in enabling or permissive language."
Since, as I have concluded, the proceedings in the District Court are not ordinary criminal proceedings, they fall outside the intended scope of the amendments affected by Act No. 57 of 2000. For those reasons, I propose to hold that this Court does have jurisdiction to entertain the present matter. The orders of the Court will therefore be:
1.Order that the preliminary question –
“Whether the Court has jurisdiction to hear and decide the applicant’s notice of motion dated 13 June 2000”
be answered, yes.
2.Order that the first, second and third respondents pay the applicants’ costs of the separate question.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate:
Dated: October 2000
Counsel for the Applicants: P E King Solicitor for the Applicants: Reg Benson Counsel for the Respondents: G T Johnson Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 31 July 2000 Date of Judgment: 5 September 2000
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