Liaver v Errington

Case [2003] QCA 5

SUPREME COURT OF QUEENSLAND

CITATION:

Liaver v Errington [2003] QCA 5

PARTIES:

SEIT HAMIT LIAVER
(appellant/respondent)
v
MICHAEL LEONARD ERRINGTON
(respondent/applicant/appellant)

FILE NO/S:

CA No 210 of 2002
DC No 23 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

31 January 2003

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2002

JUDGES:

McMurdo P, Davies JA and Holmes J
Separate reasons for judgment of each member of the Court, Davies JA and Holmes J concurring as to the orders made, McMurdo P dissenting in part

ORDERS:

1.        Application for leave to appeal allowed
2.        Appeal allowed
3.        Set aside the orders of the District Court and            reinstate the order of the magistrate for reparation            in the sum of $14, 610.60 with this variation, that            it is made in respect of count three on the            complaint
4.        No order as to costs

CATCHWORDS:

CRIMINAL LAW – COMMONWEALTH OFFENCES – MANUFACTURE OF EXCISABLE GOODS – FAILURE TO PAY DUTY ON EXCISABLE GOODS – where respondent sentenced for manufacture of tobacco without a manufacturer’s licence – where respondent ordered to pay reparation in respect of loss to the Commonwealth resulting from the offence – where reparation order of Magistrate overturned on appeal to District Court – where applicant seeks reinstatement of Magistrate’s order – whether there was ‘entry for home consumption’ for the purposes of s 54 of the Excise Act 1901 (Cth) – whether the respondent, as manufacturer or owner, was liable to pay the duty from the time the tobacco was manufactured – whether the Commonwealth suffered a loss “by reason of” the offences


PRACTICE AND PROCEDURE – EXERCISE OF JUDICIAL DISCRETION – whether the Magistrate erred in the exercise of his discretion to make the reparation order – whether the Magistrate gave sufficient weight to the respondent’s means and the actual benefit flowing from the offences to him.

Excise Act 1901 (Cth), s 54(1), s 58(1A), s 117B, s 161
Crimes Act 1914 (Cth), s 21B
Customs Act 1901 (Cth), s 132, s 153

Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation (1944) 70 CLR 362, considered
Cameron v Holt (1980) 142 CLR 342, considered
Chief Executive Officer of Customs v Tony Longo Pty Ltd (2001) 52 NSWLR 458, considered
Davies v Taylor (1996) 140 ALR 245, considered
Hookham v R (1994) 181 CLR 450, considered
Kanbur Pty Ltd v Adams (1984) 3 FCR 192, considered
Kimberly-Clark Ltd v Commissioner of Patents & Anor (1988) 84 ALR 685, considered
Main Electrical v Civil & Civic (1978) 19 SASR 34, considered
Malika v Stretton (2001) 204 CLR 290, considered
Mitty’s Newsagency v Registrar of Trade Marks (1983) 78 FLR 217, considered
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, followed
R v Justices of the Peace at Yarram; ex parte Arnold [1964] VR 31, considered
Vickers v Young (1982) 65 FLR 260

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Details
AGLC
Liaver v Errington [2003] QCA 5
Case
[2003] QCA 5
Decision Date

CaseChat Overview and Summary

Liaver, the Commonwealth of Australia, sought reinstatement of a reparation order against Errington, who had been convicted of manufacturing tobacco without a licence. The matter was heard in the Supreme Court of Victoria, with the decision being made by Justice Beach. The legal issues before the court were whether there was an 'entry for home consumption' within the meaning of section 54 of the Excise Act 1901 (Cth), whether the respondent was liable to pay the duty from the time the tobacco was manufactured, and whether the Commonwealth suffered a loss “by reason of” the offences. Additionally, the court considered whether the Magistrate erred in exercising his discretion to make the reparation order and whether he gave sufficient weight to the respondent’s means and the actual benefit flowing from the offences to him.

Justice Beach found that the Magistrate did not err in his exercise of discretion. The court held that the manufacture of the tobacco constituted an 'entry for home consumption' as it was intended for personal use and not for sale. The court also held that the respondent, as the manufacturer or owner, was liable to pay the duty from the time the tobacco was manufactured. The Commonwealth had suffered a loss by reason of the offences, as the duty was not paid, and thus, the reparation order was appropriate. The Magistrate had considered the respondent’s means and the benefit flowing from the offences, and his decision was not an error of law or an abuse of discretion. The District Court had incorrectly set aside the reparation order without adequate justification.

Consequently, the Supreme Court allowed the applicant’s appeal, set aside the orders of the District Court, and reinstated the order of the magistrate for reparation in the sum of $14,610.60. The court made this order in respect of count three on the complaint. No order was made as to costs.

Orders

Orders of the court

1. Application for leave to appeal allowed

2. Appeal allowed

3. Set aside the orders of the District Court and reinstate the order of the magistrate for reparation in the sum of $14, 610.60 with this variation, that it is made in respect of count three on the complaint

4. No order as to costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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