Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,McHugh J,Gummow J,Kirby J,Hayne J
• Judgment Date: 05 September 2003
• Neutral Citation: 2003-0905 HCA A,[2003] HCA 49
• Docket Number: B46/2002
• Date: 05 September 2003

[2003] HCA 49

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ

B46/2002

Chief Executive Officer of Customs

Appellant

and

Labrador Liquor Wholesale Pty Ltd & Ors

Respondents

Representation:

A Robertson SC with F W Redmond and G A Hill for the appellant (instructed by Australian Government Solicitor)

T D O J North SC with J Brasch for the respondents (instructed by Forde Lawyers)

Intervener:

A Robertson SC with F W Redmond and G A Hill intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Customs Act 1901 (Cth), ss 33, 234, 244, 247, 255.

Excise Act 1901 (Cth), ss 61, 120, 133, 136, 144.

Judiciary Act 1903 (Cth), ss 68, 79, 80.

Crimes Act 1914 (Cth), ss 4(1), 21B.

Evidence Act 1977 (Q), s 92.

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd

Customs and excise — Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) — Standard of proof required in order to obtain convictions for offences against specified provisions of Customs Act 1901 (Cth) and Excise Act 1901 (Cth).

Practice and procedure — Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) — Whether standard of proof a matter of ‘practice and procedure’ in the context of s 247 Customs Act 1901 (Cth) and s 136 Excise Act 1901 (Cth) — Whether standard of proof within contemplation of rules governing ‘commencing, prosecuting or proceeding with’ a prosecution — Whether statutory averment provisions affect question of standard of proof.

Federal jurisdiction — Supreme Court exercising federal jurisdiction in respect of ‘Customs prosecutions’ and ‘Excise prosecutions’ under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) — Whether s 79 Judiciary Act 1903 (Cth) ‘picks up’ any State law prescribing standard of proof to be applied — Whether s 80 Judiciary Act 1903 (Cth) applies to direct attention to common law principles.

Criminal law — Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) — Standard of proof — Common law requirements where conviction sought for offence against a law of the Commonwealth — Significance of orders sought in prosecution proceedings — Meaning of ‘conviction’ — Relevance of penal consequences of prosecutions to issue of whether proof beyond reasonable doubt necessary.

Words and phrases — ‘Customs prosecution’, ‘Excise prosecution’, ‘recovery of penalties’, ‘usual practice and procedure’, ‘commenced prosecuted and proceeded with’, ‘conviction’.

ORDER

1. Appeal allowed in part.

2. Set aside paragraphs 2 and 3 of the orders of the Court of Appeal of Queensland made on 20 July 2001 and, in lieu thereof, vary the order of Atkinson J made on 9 June 2000 by substituting the following:

• (a) What is the standard of proof required of the plaintiff in these customs prosecutions in order for him to obtain convictions for offences against ss 33 and 234(1)(a) and (d) of the Customs Act 1901 (Cth)?

  Answer: In order to obtain a conviction of a defendant for any of the offences specified, the elements of the offence must be established beyond reasonable doubt.

• (b) What is the standard of proof required of the plaintiff in these excise prosecutions in order for him to obtain convictions for offences against ss 61 and 120(1)(iv) of the Excise Act 1901 (Cth)?

  Answer: In order to obtain a conviction of a defendant for any of the offences specified, the elements of the offence must be established beyond reasonable doubt.

• (c) Are these customs prosecutions criminal proceedings for the purposes of the Evidence Act 1977 (Q)?

  Answer: Those provisions of the Evidence Act 1977 (Q) which would be applied by the Supreme Court of Queensland in civil cases (including, in particular, the provisions of s 92 of that Act) are to be applied in the trial of the present proceedings.

• (d) Are these excise prosecutions criminal proceedings for the purposes of the Evidence Act 1977 (Q)?

  Answer: Those provisions of the Evidence Act 1977 (Q) which would be applied by the Supreme Court of Queensland in civil cases (including, in particular, the provisions of s 92 of that Act) are to be applied in the trial of the present proceedings.

1 Gleeson CJ. I have had the benefit of reading in draft the judgment of Hayne J. I agree with the orders proposed by his Honour and with his reasons.

2 As to the question of standard of proof, the statutory provisions invoked by the appellant in these proceedings refer to offences, guilt, conviction and punishment. To paraphrase what was said by McTiernan J in Mallan v Lee1, the legislative description of the conduct alleged, and of the orders which the appellant seeks, should be accepted at face value. That being so, the common law requires that the appellant should establish the elements of the alleged offences beyond reasonable doubt.

3 McHugh J. I agree with the orders proposed by Hayne J and with his Honour's reasons.

4 Gummow J. The prosecutions under the Customs Act 1901 (Cth) (‘the Customs Act’) and the Excise Act 1901 (Cth) (‘the Excise Act’) giving rise to this appeal concern the alleged unlawful failure to pay certain customs and excise duties due on alcohol and cigarettes, by falsely claiming that the goods had been exported from Australia to the Solomon Islands and Fiji in 1996. The second and third respondents are directors of the first respondent, and are charged, broadly, with having aided and abetted the commission of the offences alleged against the corporation.

The proceedings

5 The appellant instituted proceedings by writ of summons in the Supreme Court of Queensland naming the three respondents as defendants. A judge of the Supreme Court (Atkinson J) answered preliminary questions posed by consent of the parties 2. There were four questions. The first two concerned the standard of proof required of the appellant. The remaining two concerned the application of the Evidence Act 1977 (Q) (‘the Queensland Evidence Act’). The appellant wished at trial to avail himself of the provisions of s 92 of that statute respecting the admissibility of documentary evidence as to facts in issue. The Court of Appeal (McMurdo P, Thomas JA, Byrne J), with McMurdo P dissenting as to the questions respecting the Queensland Evidence Act, answered both sets of questions to the opposite effect of the primary judge 3. The questions respecting standard of proof were answered by the Court of Appeal by stipulating ‘proof beyond reasonable doubt’ and the answers respecting the Queensland Evidence Act produced the result that s 92 thereof would not be applicable at trial.

6 I would allow the appeal to this Court and make orders as proposed by Hayne J. The effect of these orders is to determine that, in order to obtain a conviction, it will be necessary for the elements of the relevant offences to be established beyond reasonable doubt. However, at trial, s 92 of the Queensland Evidence Act will be applicable.

7 What follows are my reasons for reaching that result. I begin with consideration of those questions directed to the standard of proof.

Standard of proof

8 By the Amended Statement of Claim, the appellant sought (i) declarations that each of the respondents was liable to conviction for offences contrary to s 33 and pars (a) and (d) of s 234(1) of the Customs Act and contrary to s 61 and par (iv) of s 120(1) of the Excise Act; (ii) conviction for those offences; (iii) orders for recovery of penalties against the respondents; and (iv) an order pursuant to s 21B of the Crimes Act 1914 (Cth) (‘the Crimes Act’).

9 Section 21B operates in circumstances including those where ‘a person is convicted of an offence against a law of the Commonwealth’; it empowers the court, in addition to imposing penalties, to order the offender, amongst other things, ‘to make reparation to the Commonwealth … by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth … by reason of the offence’.

10 It will be apparent from the reliance upon s 21B that the provisions of the

Customs Act and the Excise Act to which reference has been made are treated in the Amended Statement of Claim as answering the description of offences against laws of the Commonwealth in respect of which conviction is sought. That assumption is well founded.

11 The identified sections of the Customs Act were s 33 and pars (a) and (d) of s 234(1). Paragraph (a) of s 234(1) is concerned with the evasion of duty and par (d) with the making of false or misleading statements to an officer of the Australian Customs Service (‘Customs’). Paragraphs (a) and (c) of s 234(2) deal with persons who contravene the relevant paragraphs of s 234(1); they do so by stating that persons contravening the laws in question are ‘guilty of an offence punishable upon conviction’ by the pecuniary penalties specified. Further provision for those convicted of offences against par (d) of s 234(1) is made in s 234(3). The phrases ‘guilty of an offence’ and ‘punishable upon conviction’ are significant for what follows in these reasons.

12 Section 33(1) of the Customs Act imposes a prohibition upon the moving of goods subject to the control of Customs. At the relevant time, at the foot thereof a sum was stated beside the term ‘Penalty’. Section 5 of the Customs Act states that, where a penalty is set out at the foot of a sub-section, this indicates that a contravention of the sub-section is ‘an offence against this Act, punishable upon conviction by a penalty not exceeding the penalty so set out’.

13 The other offences in question are those created by ss 61 and 120(1)(iv) of the Excise Act. Section 61 is in similar form to s 33 of the Customs Act. Section 5 of the Excise Act broadly corresponds to s 5 of the Customs Act. Section 120(1)(iv) is in similar form to par (a) of s...