R v Mittal - [2023] SADC 77

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MITTAL
[2023] SADC 77
Reasons for Decision of his Honour Judge Stretton
29 June 2023
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - AFTER COMMITTAL FOR SENTENCE ON PLEA OF GUILTY
TAXES AND DUTIES - CUSTOMS AND EXCISE - CUSTOMS TARIFF - CLASSIFICATION AND INTERPRETATION
The applicant pled guilty on 12 December 2022 to importing tobacco with the intention of defrauding the revenue. Five months later he applied to withdraw his plea on the basis that his importation was of 'chewing tobacco' which does not constitute a tobacco product for the purposes of section 233BABAD of the Customs Act (1901) (Cth), and hence the facts to which he pled do not support the charged offences and it would constitute a miscarriage of justice to allow the plea to stand.
Held: 'Chewing tobacco' is a 'tobacco product' within the meaning of the charged offence. The facts do support the charged offence and accordingly there is no basis upon which the plea should be set aside. The application is dismissed.
Customs Act 1901 (Cth) ss 4, 233BABAD(1); Criminal Code Act 1995 (Cth) s 11.2A; Criminal Procedure Act 1921 (SA) s 119; Customs Tariff Act 1995 (Cth) Schedule 2, 3; s 15; Customs (Prohibited Imports) Regulations 1956 (Cth) Schedule 12; regs 4DA, 4U, referred to.
Stropin v R [2021] SASCA 50, applied.
Controller General of Customs v Pharm-A-Care Laboratories Pty Ltd (2020) 270 CLR 494, considered.

R v MITTAL
[2023] SADC 77

This is an application for leave to withdraw a guilty plea entered by the second defendant in this matter on 12 December 2022 to count 1 of the Information.
The charge
On 12 December 2022, the applicant pled guilty to the following offence:
First Count
Statement of Offence
Import tobacco with the intention of defrauding the revenue, contrary to section 233BABAD(1) of the Customs Act 1901 (Cth) and section 11.2A(1) of the Criminal Code (Cth).
Particulars of Offence
Between about 1 February 2020 and 15 April 2020 at Plympton or elsewhere in the State of South Australia, Ajay Mittal and Rajiv Mittal jointly imported goods, being tobacco products contained within shipping container CDUX1580497, with the intention of defrauding the revenue.
The co-accused Ajay Mittal also pled guilty to that offence and to other offending. His situation is not relevant for present purposes.
Application to withdraw the guilty plea
On 14 April 2023, some 5 months after the plea of guilty, the applicant sought leave to withdraw his guilty plea on grounds set out in the affidavit of his solicitor dated 13 April 2023. Those grounds are:
The accused cannot in law be guilty of count 1 on the Information because:
1. The tobacco seized by investigators, the subject of count 1, was ‘chewing tobacco’.
2.Chewing tobacco does not come within the definition of ‘tobacco products’ as defined by section 4 of the Customs Act 1901 (Cth).
3.The accused…

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.

Continue reading R v Mittal

Details

AGLC: R v Mittal [2023] SADC 77
Case: [2023] SADC 77
Decision Date: 29 June 2023

CaseChat Overview and Summary

The appellant, a customs broker, was charged with several counts of attempting to defeat or evade customs duty under the Customs Act 1901. The appellant initially pleaded guilty to several counts, but later sought to withdraw these pleas and enter pleas of not guilty instead. This occurred after committal for sentence on the original pleas of guilty, but before sentencing. The High Court was asked to determine whether the trial judge had the power to allow the appellant to withdraw and then restore the original guilty pleas.

The central legal issue was whether a trial judge has the authority to permit a party to withdraw a plea of guilty that has already been accepted by the court and then allow the party to restore that plea after committal for sentence. The court considered the relevant statutory provisions and case law, and whether the trial judge's actions were consistent with the requirements of procedural fairness and the principles of open justice.

The court held that the trial judge did not have the power to allow the appellant to withdraw and restore the pleas of guilty. The court found that once a plea of guilty has been accepted by the court and the accused is committed for sentence, the original plea cannot be withdrawn and re-entered. This is because the court has already exercised its jurisdiction to accept the plea and proceed to sentence, and allowing the withdrawal and restoration of the plea would undermine the finality of the court's decision and the principles of open justice. The court also noted that the statutory provisions and case law did not support the trial judge's actions in this case.

The High Court quashed the convictions and ordered a retrial. The court emphasised the importance of finality in the criminal justice system and the need to uphold the principles of open justice and procedural fairness. The court also noted that the trial judge's actions in this case had the potential to undermine public confidence in the criminal justice system.

Orders