Page v New Zealand Customs
[2014] NZHC 1204
•30 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-40 [2014] NZHC 1204
BETWEEN JASON OLIVER PAGE
Appellant
AND
NEW ZEALAND CUSTOMS Respondent
Hearing: 19 May 2014 Appearances:
S Cullen for Appellant
A Longdill and H Musgrave for RespondentJudgment:
30 May 2014
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
30 May 2014 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Meredith Connell, Crown Solicitors, Auckland
Copy to:
S Cullen, Auckland
PAGE v NEW ZEALAND CUSTOMS [2014] NZHC 1204 [30 May 2014]
[1] Following his trial before Judge Ellis in the Manukau District Court on 5
August 2013, Mr Page was convicted on 9 August on a charge that he had committed an offence against ss 106 and 112 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009. Section 112 deals with the question of penalties. The offence itself was allegedly committed under s 106 which provides:
Failure to report cash over applicable threshold value moved into or out of New Zealand
A person commits an offence if the person fails, without reasonable excuse, to make or cause to be made a cash report, in accordance with subpart 6 of Part 2, concerning cash over the applicable threshold value that the person has moved into or out of New Zealand.
Mr Page was charged with having attempted to commit the offence.
[2] It was common ground in the District Court that the “applicable threshold”
for the purposes of that provision if $9,999.99, as was specified in the information.
District Court judgment
[3] The facts that formed the basis of the charge were set out in the Judgment under appeal.1 The following summary is based on what the Judge found: I did not understand the appellant to challenge the primary factual findings. Rather, the complaint is about the inferences the Judge drew and the conclusions he reached.
[4] Mr Page went to Auckland Airport on 4 February. He was intending to travel to the United States of America. The Judge found that once there, Mr Page intended to take whatever steps were necessary to complete the necessary formalities to enable him to board the aircraft. It is not in dispute that Mr Page had concealed in his socks the sum of US$44,950. He had another small sum of cash in his wallet including a US$50 note.
[5] Mr Page is an experienced traveller, who spends half his time in the United
States and half in New Zealand. He is familiar with Customs exit procedures, in particular those that apply at Auckland Airport. He is also aware of the currency
1 New Zealand Customs Service v Page DC Manukau CRI 2013-092-005142, 9 August 2013.
restrictions and requirements, and he has in the past spoken to Customs Officers about amounts of cash that he is carrying.
[6] The Judge accepted that Mr Page had not previously carried more than an equivalent of NZ$10,000 through Customs, but he was aware of the limit and had previously carried and declared sums of cash. The Judge found, and I do not understand this to be in dispute on appeal, that Mr Page knew exactly what he was doing and was aware of the relevant rules and regulations.2
[7] Mr Page completed the New Zealand passenger departure card, as he has done on many previous occasions. On the card there is a printed heading “Cash Reporting”, under which there is a reminder to passengers that if they are carrying on their person or in their baggage NZ$10,000 or more in cash, they must report it to a Customs Officer.
[8] Mr Page completed and signed the departure card. Holding the card and a backpack he waited in the usual queue to see a Customs Officer. He then expected that he would speak to a Customs Officer in person as he had done on previous occasions. However, he was prompted by an official to leave the line he was in and go through what is described as the “SmartGate”. The SmartGate is an inter-active terminal which includes touch screen technology. This included a direction, in what
the Judge was held was “very bold type” as follows:3
Please answer the following question:
Are you carrying $NZ10,000 or more in cash, or in bearer negotiable instruments, or the equivalent in foreign currency?
[9] To the right of the screen were two electronic depictions of rectangular buttons, one containing the word “Yes” and the other the word “No”. The Judge found that the buttons were “quite distinctive, quite large and they are approximately
10mm apart, that is about a finger breadth apart”.4
2 At [43].
3 At [53].
4 At [55].
[10] The Judge found that it would be difficult to strike both together and he inferred that was a deliberate part of the design so as to require a conscious move of the finger towards one button or the other.5 The consequence of striking the “No” button is effectively a declaration that the person is not carrying a sum of currency beyond the prescribed amount and a ticket or a card is printed by the machine indicating that the passenger may proceed to the next step. If the “Yes” button is touched then another specific message follows, directing the passenger to a Customs Officer at the Assistance Desk.
[11] The Judge said:6
I accept that Mr Page was unfamiliar with this technology, but it is not frightening, intimidating technology in today’s world of touch screens, electronic tablets, phones and what have you. It is a very straightforward device, and the questions are of course of elementary simplicity, “Yes” or “No”.
[12] Mr Page touched the “No” button. He received a print-out from the machine that directed him then to go ahead. At that point, further steps were required to be able to proceed on through to the waiting lounge, one of which was to hand his departure card to a Customs Officer in person. The Judge referred to this opportunity, which arose “however momentarily” for a brief face to face encounter with a Customs Officer who relieves the departure card from the passenger.
[13] The Judge held that this was a step with which Mr Page was “well familiar”, and indeed had been anticipating so that he could talk to one of the Customs Officers. However, he handed his departure card to a Customs Officer, saying nothing about any sum of cash concealed in his socks or elsewhere.
[14] Next he proceeded to the third step, namely passing through the electronic gate called a “Magnetometer.”7 The Judge described this as “simply a metallic
rectangle” through which persons pass and which is known by seasoned travellers to
5 At [56].
6 At [60].
7 At [65].
be likely to detect metallic objects. When Mr Page passed through that gate he set off a detector.8
[15] Prior to passing through the gate he had produced and placed on the adjacent conveyor belt a number of personal items which he knew needed to pass through the x-ray machine. These included his backpack, and his wallet which contained a small sum of cash. The Judge said:9
I thought that significant because there is nothing inherently dangerous in a wallet, I did not hear that the wallet was metallic, or might in any way have alerted the machine, but Mr Page was sufficiently careful to put that in front of the officer so that it could be inspected.
[16] However, he made no attempt to disclose the money that he had concealed in his socks. After he had passed through the gate and set off the detector he was approached by a Customs Officer on the other side who had a magnetic rod and wanted to subject Mr Page to a “pat down” search. Mr Page declined, but told the officer that he was “carrying cash in his socks”.
[17] The Judge noted that had he passed through the gate with the money undetected, there would have been nothing to prevent him boarding the aircraft and leaving the country.
[18] Mr Page gave evidence that at the time of his undergoing the procedures prior to departure he was in a state of some physical discomfort, with a build up of wax in one ear. He was concerned because he was not sure how serious it was. This was a matter Mr Page evidently raised when he was interviewed. The Judge understood Mr Page to be maintaining that this had possibly affected his state of mind and degree of attentiveness when he responded to the question asked electronically “are
you carrying cash, “Yes” or “No”?”. He continued:10
How a sore ear could have led him perhaps to misread the buttons, or to misdirect his finger in that muscular mechanical way, I was not sure, and there was no expert evidence to suggest that his pressing of the, “no” button was in any way the action of an automaton or was involuntary, he seemed to suggest that it must just have been a mistake.
8 At [67].
9 At [70].
10 At [83].
[19] However, the Judge thought that the possibility of a mistake was not something he could exclude. He therefore considered whether the evidence of Mr Page’s conduct overall supported an inference being drawn that his general intent was in fact to make no secret of his carrying cash beyond the applicable threshold value, that he had intended to declare it and simply made a mistake.
[20] The Judge rejected that possibility. He was influenced in that respect by the fact that Mr Page had had three opportunities to declare the money, once at the touch screen, once when handing over his departure card and the other before entering the Magnetometer. He had not done so. While leaving the substantial amount of money concealed, he had nevertheless placed his wallet together with other items he was carrying so as to enable them to be examined passing through the x-ray machine. Consequently, if his intention was to declare the money, he could have simply said that he had money in his socks.
[21] Mr Page had also given evidence that he had hidden the money in his socks because he wanted it on his person, and did not want to put it in the overhead locker during the flight for reasons of security. However, there was no suggestion that he felt any concern that declaring the money would risk Customs stealing it. The Judge
concluded:11
Even if I were prepared to accept that he made some sort of involuntary and unintentional mistake with the machine, and frankly I do not accept that, there were other opportunities for him to declare the money had he intended to do so.
He did not do so at any stage, and I am satisfied that the proper inference to draw from that, is that he never intended to at any stage, that his intention was in fact to take the money out of New Zealand without reporting it.
Application to adduce further evidence
[22] Against that unpromising factual background, the appellant attempted to adduce further evidence on appeal to this Court. The application was opposed by the respondent and I indicated at the hearing of the appeal that I would dismiss the
application and give my reasons in this judgment.
11 At [100]-[101].
[23] The evidence in question consisted, first, of a letter by Dr Mike Louw, dated
5 March 2014. Dr Louw is a psychiatrist and addresses anxiety disorders from which the appellant suffers essentially on the basis of what Mr Page told him in an interview of uncertain date, but presumably proximate in time to the date of the letter. The other evidence was in a brief of evidence dated 27 April 2014, signed as correct by one Darren Chan, who describes himself as the managing consultant of Armourtech Limited, a New Zealand company established in 1996 and, according to Mr Chan, “considered unparalleled experts in field of automation, computer interface, security and surveillance”. The burden of his evidence is that people can make mistakes when required to touch a screen with “yes/no” options such as the screen that Mr Page used at the airport.
[24] Mr Cullen sought to persuade me that this new evidence should be admitted on the basis that it was not reasonably foreseeable that the issues with which the statements dealt could have been relevant at the trial. He bolstered this submission by reference to passages in the notes of evidence in which a prosecution witness, Mr Gellard, had conceded that sometimes people make mistakes when using the touch screen.
[25] The question of whether the proposed new evidence should be admitted in this case fell to be considered under s 119(3) of the Summary Proceedings Act 1957. That section confers “full discretionary power” on the appellate court to “hear and receive further evidence, if that further evidence could not in the circumstances have reasonably been adduced at the hearing…”.
[26] The difficulty that the appellant faces is that his defence was evidently intended to be run on the basis that he made a mistake at the touch screen. It is unexplained why he could not reasonably have adduced evidence of the kind now sought to be adduced in furtherance of that defence at the hearing in the District Court. Although it was not a case decided under s 119(3), observations made by the
Court of Appeal in R v Bain12 are apposite here. The Court observed:13
12 R v Bain [2004] 1 NZLR 638.
13 At [22].
[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant's point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.
[27] What is said in that passage about the interest in preserving the finality of jury verdicts applies also to the interest in preserving the finality of decisions on trials before Judge alone. Far from this evidence being in respect of an issue that could not have been anticipated before the trial it was in fact an issue raised in cross- examination, and in effect went to the issues that the appellant himself raised in his defence. There is no suggestion here that the evidence could not have been produced so as to be available at the trial.
[28] Apart from that consideration, I was not persuaded that the evidence was cogent. To the extent that Mr Chan’s brief established that there can be difficulties in following the instructions so as to accurately use touch screen devices that much was already in the evidence that the Judge heard from the prosecution witness. Dr Louw’s evidence on the other hand would consist largely of reportage on matters which Mr Page himself had advised Dr Louw. As Ms Longdill submitted, it is apparently based in large part on facts that were not accepted by the Judge.
[29] For these reasons, I dismiss the application to adduce the further evidence.
The substantive issues
[30] That then leaves for consideration the substantive arguments that Mr Cullen advanced in support of the appeal. The first was whether the prosecution had satisfactorily proved beyond a reasonable doubt that the defendant “knew, as a matter of fact, that he had not completed a cash report in respect of the money”. The
second issue raised was whether s 109 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 which provides for a defence that any failure to make a cash report was due to some emergency or “any other circumstances outside the reasonable control of the defendant” should have afforded Mr Page a proper defence on the present facts.
[31] I deal with each of these issues in turn.
(a) Mens rea
[32] Mr Cullen referred to Huang v NZ Customs Service.14 In that case, it was held that s 106 creates a strict liability offence, but because the defendant was charged with an attempt, the prosecution was required to prove that he intended to move the cash out of New Zealand, and was also required to prove that he knew, as a matter of fact, that he had not completed a cash report in respect of the money.15
[33] Mr Cullen relied on statements made by Mr Page to the New Zealand Customs Service in which he said that he thought he had declared the cash and that he might not have actually ticked the right button. He added that he had “meant to click “yes” and had just made a mistake”.
[34] Mr Cullen then referred to the evidence of Mr Keith Gellard, a senior operations analyst with New Zealand Customs Service at the hearing in the District Court. When cross-examined Mr Gellard conceded that he was aware that some people press the “yes” button and on talking to a Customs Officer it is ascertained that they have misunderstood the question or have pressed the “yes” button in error.
[35] Mr Cullen also drew my attention to evidence given by Mr Page himself in which he said that he had been directed to the SmartGate which he had never used before, that he had done his best to hit the touch screen correctly and received a receipt telling him to move forward out of that area. Mr Cullen submitted that Mr Page had been “adamant in his evidence” before the Court that he thought he had
pressed the appropriate button on the SmartGate machine.
14 Huang v NZ Customs Service [2013] NZHC 3277.
15 At [30].
[36] The difficulty with this argument is that it is based on the idea that Mr Page had simply made a mistake. That possibility was carefully assessed by Judge Ellis. He rejected it because even if Mr Page had made a mistake at the touch screen he had further opportunities, as a man well familiar with the rules, to declare the money that was concealed in his socks. Those opportunities were when he handed over the departure card, and when he placed items for inspection by the x-ray machine and went through the magnetometer.
[37] The consequence of the Judge’s careful consideration of the facts was rejection of the suggestion that the appellant had made a mistake. There is no proper basis upon which this Court could reach a different conclusion on appeal.
[38] Consequently, this ground of appeal is rejected.
(b) Section 109 defence
[39] The second argument advanced on appeal is that on the facts Mr Page had raised an evidentiary foundation for the defence that his failure to make the requisite report was due to circumstances outside his “reasonable control”.16
[40] Mr Cullen submitted that an inadvertent activation of an erroneous portion of the SmartGate touch screen interface would fall within the ambit of that phrase. The defendant having established an evidential foundation for a finding that there was a “real and viable risk” of an inadvertent and/or erroneous activation of the touch screen, it was for the prosecution to satisfy the Court beyond reasonable doubt that there had not been such an inadvertent and/or erroneous activation.
[41] It seems to me that this is simply another way of putting the same argument, i.e. that the appellant made a mistake. It must be rejected for the grounds already discussed in dealing with the first ground of appeal. Another reason for rejecting it is that the judge was clearly satisfied beyond reasonable doubt on the evidence that the appellant’s failure to report the cash he was carrying was not due to an
inadvertent or erroneous activation of the touch screen.
16 Section 109(a) of the Act.
Result
[42] For the reasons given the appeal is dismissed.
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