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Parker v Comptroller-General of Customs

Parker v Comptroller-General of Customs

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Case Copied 6 December 2007 83 min read

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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 2007

JUDGMENT 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, 101

CASES 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWCA 348
Decision Date: 6 December 2007

CaseChat Overview and Summary

In *Parker v Comptroller-General of Customs*, the appellant, Mr Parker, appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales which had dismissed his application for a permanent stay of proceedings. The proceedings in question were brought by the Comptroller-General of Customs under Part XIV of the *Customs Act 1901* (Cth) for alleged contraventions of that Act. Mr Parker contended that these proceedings were of a criminal nature and that the Supreme Court lacked jurisdiction to hear them.

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

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	PARKER v COMPTROLLER-GENERAL OF CUSTOMS [2007] NSWCA 348
HEARING DATE(S):	16, 17 October 2007
JUDGMENT DATE:	6 December 2007
JUDGMENT 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, 101
CASES 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…