RYBICKI v LYNCH - [2006] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RYBICKI v LYNCH
Judgment of The Honourable Justice Duggan
9 February 2006
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - AS TO AVERMENTS AND ALLEGATIONS
Appeal against convictions for importing and being in possession of prohibited imports - discussion as to effect of averments - whether magistrate erred in relation to burden of proof.
Customs Act 1901 s 255, referred to.
Chief Executive Officer of Customs v El Hajje (2005) 218 ALR 457; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) CLR 161, applied.
Baxter v Ah Way (1909) 10 CLR 212, discussed.

CRIMINAL LAW - EVIDENCE
Whether magistrate entitled to experiment with exhibits.
Appeal dismissed.
Kozul v The Queen (1981) 147 CLR 221, applied.

RYBICKI v LYNCH
[2006] SASC 34
Magistrates Appeal

DUGGAN J. The appellant was charged on complaint with the following offences:
First Count
On or about 20 May 2003 at Melbourne in the State of Victoria, imported prohibited imports, namely seven (7) anti-personnel sprays contrary to paragraph 233(1)(b) of the Customs Act 1901.
Second Count
On or about 20 May 2003 at Adelaide in the State of South Australia, imported prohibited imports, namely two (2) anti-personnel sprays contrary to paragraph 233(1)(b) of the Customs Act 1901.
Third Count
On or about 5 June 2003 at Adelaide in the State of South Australia, had in her possession a prohibited import, namely one (1) anti-personnel spray contrary to paragraph 233(1)(d) of the Customs Act 1901 and sub-Regulation 4(2) of the Customs (Prohibited Imports) Regulations 1956.
The appellant was convicted on each count after a summary trial before a magistrate in the Adelaide Magistrates Court. She now appeals against the findings of guilt.
The charges were laid following the interception by customs officers of two packages addressed to the appellant at her address at 22 Rowland Street, Magill. One of the packages contained what the prosecution alleged were seven anti-personnel sprays. It was alleged that the other packages contained two anti-personnel sprays. The packages were intercepted at the Melbourne Air Mail Transit Centre on 20 May 2003.
During a search of the appellant’s premises on 5 June 2003, customs officers found a container in her handbag which the prosecution alleged was an anti-personnel spray. The container was labelled “Original Pepper”. The container is the same in all respects as one of the two containers in the second package which was intercepted by the customs officers.
It was not in dispute at the trial that anti-personnel sprays are prohibited imports and that the appellant did not have permission to import them into Australia. Furthermore, it was part of the agreed facts at the trial that the two packages were sent by the same person from Poland.
The appellant told the investigating officers that she had a friend by the name of “Andy” who rang to inform her that a package might arrive for her. The appellant then added:
So actually not for me, somebody would pick it up.
She said she did not know the surname of “Andy”.
Later in the same interview, the following conversation took place:
AThis Andy, he called me, he said that he sent – he didn’t even say package I think he said some sort of postage – okay, some kind of postage.
Q29Yep.
AAnd he just kept calling me. He called me already a few times.
Q30Where do you know him from?
AOh, I met him years ago in Australia. He was a friend of my husband.
Q31Okay, and he lives in Australia now?
AI don’t know. He – he I suppose he does.
Q32Who was your husband?
AWho is my husband?
Q33Yes.
AMy husband lives in Poland.
Q34What is his name?
AThomas Rybicki.
And later:
Q37Okay. Now, there are other things in the parcel, in the parcels that were delivered to you. Do you know anything about the other things that were in the parcel?
AI have no idea what’s in there. I haven’t asked him.
MR…..
Q38You say that Andy talked to you about a parcel?
AYeah.
Q39Did he say that he’s send parcel to you?
AYeah. He say he send – I think he was talking about one package. He asked me whether it arrived and that’s it. Oh, he told me somebody would pick it up, it was for someone.
Q40Did you ask who was it for?
AUm, I might have asked, I don’t remember. That was some time ago.
Q41Did you ask him what was in the parcel?
ANo, it wasn’t for me.
Evidence was also led that, on 16 September 2003, a man named Andrew Ostorwski returned to Australia on an overseas flight. A diary in his possession was examined and there were several references linking him to the appellant. They included details of her address and telephone numbers. According to the prosecution case, this passenger was the man “Andy” referred to by the appellant in her interview.
Other evidence disclosed that Mr Ostorwski was absent from Australia from July 2001 to May 2004. His place of birth, as shown on the passenger cards, was Poland.
It was also established that three international telephone calls were made to the appellant’s home number on 9 May, 12 May and 13 May 2003 respectively. There was no evidence to link Mr Ostorwski with the calls. However, the prosecution relied on the evidence as establishing that the appellant received three international calls at a time shortly before the two packages were mailed to her.
Particulars of the charges were set out in the complaint. It is necessary to refer to them because, apart from the evidence which I have summarised, the prosecution also relied on the facts referred to in [1] to [12] of the particulars as averments for the purposes of s 255 of the Customs Act 1901.
The particulars alleged were as follows:
PARTICULARS OF CHARGE 1
(1)On a date prior to 20 May 2003 the defendant caused a package to be sent by mail from Poland to Australia addressed to her at Unit 3/22 Rowland Street, Magill 5072, Australia (the package).
(2)On 20 May 2003 the package was intercepted by Customs Officers at the Melbourne Airmail Transit Centre and upon examination was found to contain seven (7) anti-personnel sprays, three of which were labelled “Police Security Defence (CS Gas)”, three labelled “American Style NATO Super-Paralisant (CS Gas)” and a further one labelled “CS Gas Interpol No. 1 Paralysant”.
(3)Sub-Regulation 4(2) of the Customs (Prohibited Imports) Regulations 1956 (the Regulations) prohibits the importation of goods listed in Schedule 3 of the Regulations unless the written consent of the Minister, the Commissioner of the Australian Federal Police or the commissioner (however designated) of the police force of a State or Territory is produced to a Collector and the goods are imported for the use of the Australian Federal Police, a police force of a State or Territory or a correctional institution of a State or Territory.
(4)Anti-personnel sprays are listed at Item 1 of Schedule 3 of the Customs (Prohibited Imports) Regulations 1956.
(5)The defendant did not have the written consent of the Minister, the Commissioner of the Australian Federal Police or the commissioner of the police force of a State or Territory to import the anti-personnel sprays and as such they are prohibited imports.
PARTICULARS OF CHARGE 2
(6)On a date prior to 20 May 2003 the defendant caused a package to be sent by mail from Poland to Australia addressed to her at Unit 3, 22 Rowland Street, Magill 5072, Australia (the second package).
(7)On 20 may 2003 the second package was intercepted by Customs Officers at Postal Operations, Adelaide and upon examination was found to contain two (2) anti-personnel sprays, one of which was labelled “Original Pepper” and the other labelled “American Style NATO Super Paralisant CS-Gas Silliarde”.
(8)Sub-Regulation 4(2) of the Customs (Prohibited Imports) Regulations 1956 (the Regulations) prohibits the importation of goods listed in Schedule 3 of the Regulations unless the written consent of the Minister, the Commissioner of the Australian Federal Police or the commissioner (however designated) of the police force of a State or Territory is produced to a Collector and the goods are imported for the use of the Australian Federal Police, a police force of a State or Territory or a correctional institution of a State or Territory.
(9)Anti-personnel sprays are listed at Item 1 of Schedule 3 of the Regulations.
(10)The defendant did not have the written consent of the Minister, the Commissioner of the Australian Federal Police or the commissioner of the police force of a State or Territory to import the anti-personnel sprays and as such they are prohibited imports.
PARTICULARS OF CHARGE 3
(11)On 5 June 2003, during a search of the defendant’s residential premises, the defendant was found to have in her possession one (1) anti-personnel spray labelled “Original Pepper”.
(12)Paragraph 233(1)(d) of the Customs Act 1901 prohibits the possession of prohibited imports. Anti-personnel sprays are listed at Item 1 of Schedule 3 of the Customs (Prohibited Imports) Regulations 1956 and as such are prohibited imports for the purpose of paragraph 233(1)(d) of the Customs Act 1901.
Some of the grounds of appeal require consideration of the effect of the averments made by the respondent in the complaint. It is convenient, therefore, to say something about the relevant legislation.
Section 255 of the Customs Act 1901 provides as follows:
Averment of prosecutor sufficient
(1)In any Customs prosecution the averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter or matters averred.
(2)This section shall apply to any matters so averred although:
(a)     evidence in support or rebuttal of the matter averred or of any other matter is given by witnesses; or
(b)     the matter averred is a mixed question of law and fact, but in that case the averment shall be prima facie evidence of the fact only.
(3)Any evidence given by witnesses in support or rebuttal of a matter so averred shall be considered on its merits and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.
(4)The foregoing provisions of this section shall not apply to:
(a)     an averment of the intent of the defendant; or
(b)     proceedings for an indictable offence or an offence directly punishable by imprisonment.
(5)This section shall not lessen or affect any onus of proof otherwise falling on the defendant.
In Chief Executive Officer of Customs v El Hajje (2005) 218 ALR 457 the High Court considered the operation of s 144 of the Excise Act 1901 which is in almost identical terms to the Customs Act provisions. The following points were made in the joint judgment of McHugh, Gummow, Hayne and Haydon JJ at [33]:
1An averment is prima facie evidence of the matter or matters averred.
2The section does not alter the incidence of the final burden of proof.
3An averment alleging a matter of mixed law and fact is prima facie evidence of the fact only.
4If evidence is led about a matter averred, the averment provision still applies and evidence given by witnesses in support or rebuttal of the matter has to be considered on its merits. The probative value of such evidence is neither increased nor diminished by reason of the section.
5 The intent of the defendant cannot be averred.
Their Honours said at 38:
The averment provisions are concerned with what is to be proved. The Act provides that what is averred is to be prima facie evidence of the matter averred. Thus the Act prescribes a manner of proof (to the point of being prima facie evidence) of the matter averred. The matter averred is not then to be subdivided further, whether between material facts and evidence, or between ultimate facts and evidence, or between ultimate facts in issue and other facts going to the proof of those facts.
Finally, it was pointed out that, because a conviction was being sought in a prosecution, the elements of the offence must be established beyond reasonable doubt.
In the earlier case of Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 Hayne J also referred to the task faced by the court in assessing the effect of averments. He said at [142]:
For present purposes, what is important is that although the averment provisions do not place upon the defendant the burden of disproving facts, averments of the Customs will suffice to discharge its onus of proving those facts. It will, in every case, be a matter for the judge to say, on the whole of the material, whether the facts are established to the requisite degree of proof. The judge may, but need not, treat what is properly averred as establishing that degree of proof.
And further at [144]:
No matter what standard of proof is adopted, the averment provisions may, in certain circumstances, confront a judge with the difficulty of resolving a competition between the requirement of the averment provisions that, as a matter of law, certain facts may, but need not, be taken to have been established to the requisite standard, and evidence tendered in contradiction of that conclusion. No matter what the standard of proof, the judge can resolve that competition in favour of the party making the averment only if persuaded of the existence or occurrence of the fact averred. The averment provisions, therefore, neither suggest nor require departure from the tentative answer expressed earlier in these reasons that if conviction is sought, proof beyond reasonable doubt of the elements of the relevant offence is necessary.
The first ground of appeal asserts that the magistrate erred in directing himself on the onus of proof. Attention was drawn to a passage in his reasons for decision where the magistrate quoted from Watson & Watson, “Federal Offences” Vol. 1A at [3.15240]:
Section 255 casts on the defendant the burden of disproving the charge made against him or her: “averment” covers essential parts of the offence and is not merely a preliminary or final technicality – Baxter v Ah Way (1909) 10 CLR 212. But where an information following the language of the Act was prefaced by a number of allegations of matters of evidence from which, if they had been proved in the ordinary way, the guilt of the accused might have been inferred, such allegations did not come within the scope of averments – Schiffmann v Whitton (1916) 22 CLR 142. See also Diamond and Boart Pty Ltd v Lanham (1985) 79 FLR 237.
The term “averment” is confined to pure allegations of fact: it does not include an allegation of a conclusion of mixed law and fact. Section 255 has no application where the prosecutor elects to put the actual facts before the court – Symons v Schiffmann (1915) 20 CLR 277. Thus where there was an inconsistency between the averments and the documentation which entitled the court to conclude that the prima facie truth of the averments had been displaced by the evidence, the burden of proof beyond reasonable doubt remained on the prosecution – Charlton v Rogers (1985) 82 FLR 40; 20 A Crim R 238.
In Baxter v Ah Way at 216 Higgins J expressed the view that s 255 as it stood was “meant to throw the burden of proof on the defendant in Customs cases of disproving the charge”. However, as the court pointed out in El Hajje’s case there was some debate after Baxter v Ah Way as to the effect of the averment provisions. Included in that debate was the issue whether averments reverse the onus of proof. It was made clear in El Hajje’s case that there was no such reversal. Although the position is clarified in later parts of the commentary in Watson & Watson which were not quoted by the magistrate, I think the reference to Baxter v Ah Way is apt to mislead.
It is clear, however, that the magistrate did not act on this statement of the law. He found the charges proved beyond reasonable doubt and there is nothing in the reasons for decision to suggest that he approached the matter on the basis of a change in the onus of proof.
Criticism is also made of the following statement in the reasons for decision at [28]:
The defendant denied having knowledge of the alleged prohibited imports during the record of interview but I find her explanation to be inherently improbable. The goods were addressed to her at her home address and but for the interception by Customs would inevitably have reached her there. It is inherently improbable that whoever sent the packages had done so without the knowledge of the defendant. In the absence of evidence from the defendant, the existence of her address and phone number in the diary of Andrew Ostorwski, the fact that he was overseas at the relevant time and that telephone calls were made to the defendant from overseas shortly before the packages’ arrival, is compelling circumstantial evidence that the defendant well knew the packages and their contents were coming to her. (emphasis added)
According to the argument, the words emphasised suggest a shifting of the burden of proof.
I cannot agree with this interpretation of the magistrate’s remarks. He was doing no more than commenting on the fact that certain aspects of the evidence had not been contradicted by the defendant. There is no reason why the absence of evidence countering the apparent significance of proved circumstances cannot be regarded as a factor in assessing the probative value of that evidence.
Next, it was argued that the magistrate erred in finding that the canisters from the two parcels and the canister found in the appellant’s handbag contained anti-personnel spray.
The prosecution did not adduce expert evidence as to the contents of the cans. However, the averment stated that each of the objects which were the subject of the charges was an anti-personnel spray.
In finding that the canister contained anti-personnel spray, the magistrate said at [31]f:
Mr Allen submitted that there was no evidence to suggest that the various canisters contained anything. With respect, he is wrong about that. One only has to shake them to feel and hear that there is something inside each of them.
When comparing P4 with the identical canister within P2, I accidentally caused a minute amount of its contents to be emitted, to my great distress. I ignore this, however, for the purpose of my decision. I rely upon the averment and the defendant’s concession that the spray would distress dogs to conclude that the contents constitute an anti-personnel spray.
The canisters which were seized were of three types. One was labelled “Police Security” and the words “CS Gas”, “Defence” and “Super Paralisant” were printed on the label. The second type of canister had the words “NATO SUPER-PARALISANT” and ‘CS-GAS” printed on the label. The label on the third type included the words “Original Pepper” with instructions on how to use the canister as protection against biting animals.
The magistrate referred to s 70 of the Evidence Act 1995 (Commonwealth) which provides that, in certain circumstances, the hearsay rule does not apply to a tag or label. However, he also pointed out that s 70(2) excludes the operation of that section in customs and excise prosecutions.

In the circumstances of the present case I think it could be argued that the evidence of the labels is original circumstantial evidence. In other words, the fact of possession of canisters with these labels is an item of circumstantial evidence, despite the fact that the labels cannot be used to establish the truth and accuracy of what they proclaim cf. R v Leroy [1984] 2 NSWLR 441 at 447.
However, the use of the labels as original evidence was not argued before me and I disregard it for present purposes. Nevertheless, I am of the view that it was open to the magistrate to find that it had been established beyond reasonable doubt that the canisters contained anti-personnel spray. First and foremost was the averment that this was the case. Secondly, there was no evidence to the contrary. Thirdly, there was evidence that the appellant had in her possession a canister which was identical in size and shape to all the other canisters. It bore labelling which was identical to a canister in one of the seized packages. In addition, there was the comment by the appellant to the customs officers that the canister in her possession was used by her as a dog spray, coupled with the comment that she was nearly attacked by a dog recently.
It was argued that the magistrate should not have shaken the canisters as he appears to have done, thus resulting in his comment that there appeared to be something inside them. There is no substance to this argument. The canisters were exhibits and the magistrate was entitled to examine, touch and handle them. Simple experimentation of the type conducted by the magistrate was also permissible: Kozul v The Queen (1981) 147 CLR 221 at 226.
It was also argued that the magistrate erred in observing that the appellant had conceded that the spray would distress dogs. The appellant told the customs officers that the canister in her handbag was for protection against dogs. She said she had it for use as “a dog spray”. She did not specifically assert that the spray would distress dogs, but it is clear from what she said that this was her understanding. The magistrate was entitled to rely on these statements by the appellant as part of the evidence to establish the identity of the contents of the canisters. I do not think the magistrate misstated the effect of the evidence to any relevant extent.
The appellant complained in another ground of appeal that part of the discussion which the appellant had with the customs officers should have been excluded from evidence in the exercise of the judge’s discretion. The references to the use of the object found in her handbag as a dog spray was in that section of the conversation which was challenged.
The conversation took place during a search of the appellant’s home on 5 June 2003. It was recorded and a transcript of the conversation was tendered during the hearing (P3). There was an initial discussion with the appellant about the purpose of the search. At question 1 the appellant was given the usual caution. The discussion continued until answer 53 when the appellant said “I don’t think I want to say anything more at this stage”. The search then commenced and Mr Bawden of the Customs Service told the appellant what he and the officers were doing. As the magistrate pointed out, it does appear that the appellant willingly entered into conversation after her earlier intimation that she did not think she wanted to say anything more. She asked questions about the search and the investigation. For example, immediately after she made the comment to which I have just referred, the following conversation took place:
Q55We will leave your son’s bedroom until last so that he can sleep as long as possible. Stella, if there is something in there that is of interest to us relating to this subject and you tell us about it, we will be out of here a lot quicker, I must inform you of that. So if there is something there that will put us onto these implications, we can find that, find the evidence we need and we can be out of here. Other than that, we have to search the whole place to see what we can find.
AWhat was it again, I’m sorry?
Q56Two parcels that have been imported.
AYeah.
Q57Containing anti personnel sprays which is capsicum spray.
AAnd that for being … unintelligible …
Q58Sorry?
AIt is illegal to import it?
Q59Yes, prohibited imports, yes.
AOkay. Why does – why – if it was sent to me and I didn’t want it, why are you going to search my house?
Q60Well, if that is the case that would be true but we don’t know that to be so yet. We need to prove that in our own minds that you had nothing to do with it then that will be fine. But if you can prove that to us, we will be only too pleased but in the interim, we need to look for any other evidence that may tie you into the importations and that is what we are about. So if there is anything in there that is relating to these imports that you know about, it would be best for you if you tell us now because we will - - -
AI haven’t got any gas in the house.
Some of the comments made by the customs officer in this passage give rise to concern. However, it was not claimed that any of the statements made by the appellant were involuntary. The application for exclusion of the evidence was based on the alleged persistence of the officers in asking questions after the appellant had said she did not think she wanted to say anything more at that stage.
The search continued and the appellant asked further questions about the contents of the parcels which had been seized in Melbourne. The conversation which took place during this part of the search related mainly to the appellant’s son who was in his room, which was then searched. It was then that Mr Bawden was told by another officer that the canister had been found. The appellant was asked where it came from. She replied with the comment about is use on dogs.
After considering the evidence of the search and the conversation, I have reached the conclusion that it was open to the magistrate to exercise his discretion to allow the evidence to be given. Although it would have been appropriate for the customs officer to issue a further caution after the canister was found, I do not think this was a case of persistent questioning after a clear indication of unwillingness to answer further questions: The Queen v Stafford (1976) 13 SASR 392.
Next, issue is taken with the following passage in the reasons for decision at [33] and [34]:
This is not a case where the defendant is asserting an innocent receipt of unsolicited mail. She was aware from her telephone conversations with “Andy” that a package was coming to her address. It is inherently improbable in the circumstances that she did not know what was in it. Neither does it make sense, as she asserts, that it was meant for somebody else. If that were the case, why was it posted to her and not directly to the other person?
I find that the evidence establishes that the defendant “caused” Exhibits P1 and P2 to be imported into Australia. She did so because she acquiesced in it. (See the broad definition of “cause” as a noun and verb in Black’s Law Dictionary 5^th Ed. p 200).
Mr Allen, for the appellant, placed emphasis on the reference to acquiescence. He argued that mere acquiescence would not involve any physical act on the part of the appellant.
In my view, the findings of guilt were not based on mere acquiescence by the appellant. The magistrate found that this was not a case of unsolicited mail. He found that the appellant had prior knowledge of the packages coming to her address. He refused to accept that she did not know what was in the packages. It follows from these findings that she permitted her address to be used as the place to which the packages would be sent. In my view, this conduct justifies the conclusion that she took part in the importation of the parcels and their contents. Such conduct would amount to importing for the purposes of the Customs Act.
Finally, it was argued that there was insufficient proof of the offences. In my view, the magistrate used the averments in the manner identified as appropriate in El Hajje’s case. He did not discuss that process itself, but his reasons disclose that he adopted it. He did not decide the matter by reference to the averments alone. It is clear that he considered the averments in conjunction with the evidence before reaching any conclusion beyond reasonable doubt. What evidence there was supported the averments.
The appeal will be dismissed.