Parker v Comptroller-General of Customs

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HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND KIEFEL JJ

STEPHEN EDWARD PARKER  APPELLANT

AND

COMPTROLLER-GENERAL OF CUSTOMS  RESPONDENT

Parker v Comptroller-General of Customs [2009] HCA 7
12 February 2009
S317/2008

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

J T Gleeson SC with M J Darke and D A Lloyd for the appellant (instructed by Yeldham Price O'Brien Lusk)

D J Fagan SC with G M Elliott for the respondent (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. On 30 July 1992 the Comptroller-General of Customs commenced proceedings in the Supreme Court of New South Wales against the appellant, Stephen Edward Parker, two companies, Lawpark Pty Ltd ("Lawpark") and Breven Pty Ltd ("Breven") and another individual, Gary Thomas Lawler.  The proceedings arose, inter alia, out of alleged offences against the Customs Act 1901 (Cth) ("the Customs Act") involving unauthorised movement of goods from a bond warehouse and the evasion of duty payable under the Customs Act. The offences were said to have been committed between 1 August 1987 and 31 May 1990.

  2. The background to the charges against Mr Parker was an inquiry undertaken between 1987 and 1989 by officers of the Australian Customs Service ("Customs") into suspected contraventions of the Spirits Act 1906 (Cth) ("the Spirits Act") and the Customs Act. The investigators formed the opinion that some importers of brandy had, before bottling and selling the imported product, been mixing it with a grain-based alcohol, produced in Australia, on which duty had not been paid. The primary targets of the inquiry were Lawpark, which imported and distributed spirits, Kingswood Distillery Pty Ltd ("Kingswood Distillery"), which manufactured and processed spirits in Australia, and Breven, which owned a bond store where imported spirits were warehoused without incurring any liability to pay duty. Mr Parker was a director and shareholder of Lawpark and Breven.

  3. On 6 March 1990, Customs officers went to a number of premises and, relying upon notices to produce issued under s 214 of the Customs Act and reg 171 of the Customs Regulations, required the production of books and documents. They took the view that the requirements were not met. They then undertook compulsory searches and seizures relying upon warrants issued under s 214. Following examination of the documents obtained from their searches a number of charges were laid under the Customs Act including those against Mr Parker. Those against Mr Parker related to the unauthorised removal of imported Scotch whisky from the Breven warehouse and the evasion of duty payable in relation to the whisky.

  4. The proceedings against Mr Parker came on for hearing in the Supreme Court of New South Wales in April 2005. By then he was the only remaining defendant. The extraordinary delay was in part the result of a stay of proceedings ordered on 10 June 1994. By…

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Details
Case
[2009] HCA 7
Decision Date

CaseChat Overview and Summary

The appellant, Parker, appealed to the High Court of Australia following a decision of the Court of Appeal of New South Wales. The dispute concerned the admissibility of documents seized by officers of the Comptroller-General of Customs under a warrant issued pursuant to section 214 of the *Customs Act 1901* (Cth). The warrant authorised the seizure of documents relating to a single bottle of brandy, but officers seized documents pertaining to "other goods" imported within the preceding five years.

The central legal issues before the High Court were whether the appellant had been denied procedural fairness by the Court of Appeal, and whether the seizure of the five-year documents was relevant to the exercise of discretion under section 138 of the *Evidence Act 1995* (NSW). Specifically, the Court considered whether the Court of Appeal erred by adopting the reasoning of a previous District Court decision, *O'Neill*, without affording the appellant an opportunity to make submissions on that point, and whether this omission prejudiced the appellant's case. The Court also examined the scope of principles respecting procedural fairness in curial proceedings and whether an appellate court is required to provide such an opportunity when considering a non-binding prior decision.

The majority of the High Court reasoned that while the Court of Appeal's approach to the *O'Neill* decision was not ideal, it did not occasion a denial of procedural fairness or prejudice to the appellant. The Court noted that the *O'Neill* decision had been considered and departed from by other courts, and that the appellant had ample opportunity to argue the substantive issues regarding the scope of the warrant and the application of section 138 of the *Evidence Act*. The majority found that the seizure of the five-year documents was not a wilful disregard of the Act, and that the discretion under section 138 was correctly exercised by the lower courts.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs. (By the majority, Heydon J dissenting)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The section was confined in its application to matters of fact[19] and did not operate to increase or diminish the probative value of any evidence given by witnesses[20]. It did not apply to an averment of the intent of the defendant[21]. [19]Section 255(2)(b).[20]Section 255(3).[21]Section 255(4)(a).The statutory framework – the Evidence Act, s 138 As at 12 April 2005, the date of the trial, and subsequently, s 138 was in the following terms:"(1) Evidence that was obtained:(a)improperly or in contravention of an Australian law; or(b)in consequence of an impropriety or of a contravention of an Australian law;is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.…(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:(a)the probative value of the evidence; and(b)the importance of the evidence in the proceeding; and(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and(d)the gravity of the impropriety or contravention; and(e)whether the impropriety or contravention was deliberate or reckless; and(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." The term "Australian law" is defined in the Dictionary to the Evidence Act as a "law of the Commonwealth, a State or a Territory". The word "law" is defined in cl 9 of Pt 2 of the Dictionary: "(1)A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place. (2)A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia."There is no definition of "impropriety" or "contravention" in the Act. Section 138 was one of the provisions of what became the Evidence Act 1995 (Cth) and the New South Wales Evidence Act recommended by the Law Reform Commission in its Report No 38, published in 1987. The proposed cl 119, as it was numbered in the draft Act, was explained by the Commission[22]: "This clause provides a discretionary exclusion for evidence obtained improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted."[22]Australia, Law Reform Commission, Evidence, Report No 38, (1987) at 243.

Decision

Reasons for decision

FRENCH CJ GUMMOW, HAYNE AND KIEFEL JJ
Contemporaneously with the issue of the notice to produce, the Collector signed a Sched V warrant in the following terms:"TO: James Michael MUTTON Officer of Customs.WHEREAS: information in writing has been given on oath to me that goods had been illegally dealt with. You are hereby authorized in the event of LAWPARK PTY LTD failing to comply immediately with any requirement made in pursuance of section two hundred and fourteen of the Customs Act 1901, to enter into, at any time of the day or night, and search, any house premises or place in which any books or documents relating to the goods are or are supposed to be; and to break open any such house premises or place and search any person therein or thereon and any chests trunks or packages therein or thereon; and to take possession of, remove and impound any of those books and documents which are found: And for so doing this shall be your sufficient warrant.This warrant has force throughout the state of New South Wales. This warrant shall remain in force for a period of one month from the date thereof unless revoked before the expiration of that period. Dated this 1st day of March 1990." The O'Neill judgment Before turning to the judgment of the primary judge dealing with the admissibility of the documents seized under the Sched V warrant, it is necessary to refer briefly to the O'Neill judgment given by Dunford DCJ in the District Court of New South Wales on 18 August 1988. In that case the admissibility of documents seized under s 214 of the Customs Act was in issue. Dunford DCJ held that upon its proper construction s 214(3), authorising search and seizure of documents upon failure to comply with a s 214(1) requirement, only extended to documents relating to the goods on which that requirement was based. That is to say only the goods which were the subject of the information could be seized or detained. The authority under s 214(3) did not extend to documents relating to the wider class of goods imported within five years prior to the date of requirement to produce. A similar view of the operation of s 214(3) was taken by two judges of the Federal Court in 1991 and 1993[28].[28]Ace Custom Services Pty Ltd v Collector of Customs(NSW) (1991) 31 FCR 576 at 584-585 per Davies J; Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397 at 400-401 per Heerey J. There was evidence before the primary judge of advice sought and received by the Collector of Customs which had touched upon the O'Neill decision. On 31 July 1989 an officer of the Australian Government Solicitor ("AGS") provided a written advice to the Collector that the interpretation of s 214 by Dunford DCJ was correct. On 11 August 1989 another officer of AGS advised the Collector, in writing, that the interpretation was incorrect and that s 214(3) authorised seizure of documents including five year documents. On 7 September 1989 a Regional Manager (NSW) of Customs wrote to AGS seeking advice about the use of s 214 powers in relation, inter alia, to Kingswood Distillery and Breven. AGS sought advice from Mr Rowling of counsel. On 27 October 1989 Mr Rowling produced a written advice raising doubts about whether s 214 would authorise the requirement for production of five year documents where the illegal dealing with goods relied upon was an illegal dealing under the Spirits Act. He did not in terms address the construction of s 214(3). Although he referred to O'Neill, he did so on another point.Challenge to admissibility before the trial judge

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE AND KIEFEL JJ

Full text does not contain this section.