Appeal Outcome: Appeal dismissed 12 February 2009 [2009] HCA 7
New South Wales
Court of Appeal
CITATION: PARKER v COMPTROLLER-GENERAL OF CUSTOMS [2007] NSWCA 348 HEARING DATE(S): 16, 17 October 2007
JUDGMENT DATE:
6 December 2007JUDGMENT OF: Mason P at 1; Tobias JA at 2; Basten JA at 3 DECISION: Appeal dismissed with costs. CATCHWORDS: CUSTOMS – customs prosecutions – jurisdiction – whether civil or criminal jurisdiction – Customs Act 1901 (Cth), Part XIV
CUSTOMS – failure to comply with request for documents under Customs Act 1901 (Cth), s 214 – reasonable time for compliance with request for documents
EVIDENCE – exclusion of evidence – improperly or unlawfully obtained evidence – power to admit such evidence – discretionary considerations – Evidence Act 1995 (NSW), s 138
JURISDICTION – appeal from conviction for federal offence – whether brought under Supreme Court Act 1970 (NSW), s 101 or Criminal Appeal Act 1912 (NSW)LEGISLATION CITED: Acts Interpretation Act 1901 (Cth), s 26
Constitution (Cth), s 77
Crimes Act 1914 (Cth), s 10
Criminal Appeal Act 1912 (NSW), ss 5AA, 5B, Part 3
Criminal Procedure Act 1986 (NSW), ss 245, 246, Chapter 4, Part 5
Customs Act 1901 (Cth), ss 8, 33, 214, 234, 244, 245, 247, 248, 251, 252, 253, 254, 255, Part XIV, Schedule V
Customs and Excise Amendment Act 1982 (Cth), s 62
Customs Regulations, reg 171
Evidence Act 1995 (NSW), s 138
Judiciary Act 1903 (Cth), ss 68, 79, 80
Justices Acts Amendment Act 1900 (NSW), s 9
Justices Act 1921 (SA)
Spirits Act 1906 (Cth), ss 2A, 4, 9, 22
Supreme Court and Circuits Act 1900 (NSW), s 18
Supreme Court Act 1970 (NSW), ss 75A, 101CASES CITED: Ace Custom Services Pty Ltd v Collector of Customs (NSW) (1991) 104 ALR 463
Bunning v Cross (1977-78) 141 CLR 54
Carroll v Mijovich (1991) 25 NSWLR 441
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161
Chief Executive Officer of Customs v Powell [2007] QCA 106
Collector of Customs v Tallerman & Co Pty Ltd [1975] 2 NSWLR 832
The Commonwealth v Mewett (1997) 191 CLR 471
Comptroller-General of Customs v Parker [2006] NSWSC 390
Comptroller-General of Customs v Parker [2006] NSWSC 1269
Conway v The Queen (2002) 209 CLR 203
Evans v Button (1988) 13 NSWLR 57
Evans v Lynch [1984] 3 NSWLR 567
Ex parte Oesselmann (1902) 2 SR (NSW) 149
Ganke v Deputy Federal Commissioner of Taxation [1975] 1 NSWLR 252
GH Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635
Holmes v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4328
In the matter of O’Neill (unrep, NSWDC, 18 August 1988)
Jack Brabham Holdings Pty Ltd v Button (1988) 94 FLR 278
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400
Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 443
Ove Arup Pty Ltd v Industrial Court of…
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- Case
- [2007] NSWCA 348
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the proceedings instituted by the Comptroller-General of Customs under Part XIV of the *Customs Act 1901* were civil or criminal in nature, and consequently, whether the Supreme Court of New South Wales possessed the requisite jurisdiction to entertain such proceedings. This question turned on the interpretation of the *Customs Act 1901* and the characterisation of the penalties sought to be imposed.
The Court of Appeal, comprising Mason P, Tobias JA, and Basten JA, unanimously dismissed the appeal. Their Honours reasoned that the proceedings under Part XIV of the *Customs Act 1901* were, in substance, civil in nature, notwithstanding the potential for pecuniary penalties. The Court applied the established legal principles for distinguishing between civil and criminal proceedings, focusing on the purpose and nature of the statutory regime. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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