WONG v COMPTROLLER GENERAL OF CUSTOMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL BEAZLEY JA 6 May 1998 [1998] NSWCA 266 Beazley JA There is before me a Notice of Motion seeking a stay of proceedings in the Common Law Division pending determination of an application for appeal from the interlocutory judgment of Carruthers AJ published on 29 April 1998. There are consequential orders sought in the Notice of Motion, firstly, that application for leave to appeal be expedited, and others relating to costs. There has been filed in support of the Notice of Motion an affidavit of Gregory Carl Spain dated 6 May 1998, which annexes to it a summons for leave to appeal, in draft form, together with the statement under Pt51 r4(7). It is proposed that this would accompany the summons for leave to appeal, together with the judgment of Carruthers AJ which is sought to be stayed. The interlocutory judgment deals with the admissibility of certain documents which are critical to the plaintiff/opponent's case. In saying that I understand that counsel for the opponent accepts the critical nature of those documents in the proceedings. His Honour, in a lengthy judgment, determined that the documents were admissible. In doing so he directed his attention to twelve questions which the parties had submitted to him for determination. Those questions raised a number of issues which were relevant to the basis of admissibility of the documents. Mr McGovern, counsel for the claimants, has submitted on this application that four broad matters of principle arise out of his Honour's judgment: (i) whether proceedings under Pt14 of the Customs Act 1901 (Cth), under which these proceedings have been brought, are civil or criminal in nature; (ii) the validity of the s214 notices under which the documents whose admissibility is in question were seized; (iii) the interrelationship of s69 with s166 to s168 of the Evidence Act 1995 (NSW); and (iv) the question of the extent and nature of the police powers of questioning and interrogation under the Customs Act. Mr McGovern submits that the trial judge erred in his findings in respect of each of these matters. I will turn to each briefly for the purposes of dealing with the issues which Mr McGovern submitted arose in respect of those matters of principle. His Honour determined that the proceedings were civil in nature. The question of whether this is so has, as Mr McGovern pointed out, a profound effect on the nature of the evidence which can be led. If the proceedings are criminal in nature rather than civil then there are significant restrictions on the evidence which might be brought. Mr McGovern referred in particular to s86 of the Evidence Act which applies only to criminal proceedings, and provides that a document which is prepared by or on behalf of an investigating official is not admissible to prove the contents of the question or representation or response made by way of oral admission by a 2 UNREPORTED JUDGMENTS defendant unless the defendant has acknowledged that the document is a true record of the question, representation or response. In this case the investigating officer had prepared a statement setting out, in a question and answer form, the contents of the conversation which he said he had with the first claimant on the occasion of the seizure of documents. That statement had been prepared from his own recollection and from contemporaneous notes taken of the conversation by the officer assisting him. If the proceedings are civil in nature then there is no such restriction. Mr McGovern also referred to the provisions of the Evidence Act relating to admission of tendency or coincidence evidence and, in particular, the provisions of s101 which only apply in criminal proceedings. His Honour, having determined that the proceedings were civil in nature, was not restricted in a determination of the admissibility of the documents in question by such provisions. Whilst the question of the characterisation of proceedings brought under Pt14 has been a matter of debate, it seems that at this point the balance of authority is in favour of the proceedings being civil proceedings but with the attendant caution that the Court should approach the proceedings on the basis that what is sometimes called the Briginshaw standard be applied: see Briginshaw v Briginshaw (1938) 60 CLR 336. As in my view his Honour has not been shown to be obviously wrong in relation to his determination in respect of this issue, it follows that he did not have to have regard to the sections of the Evidence Act which relate only to criminal proceedings. The second point which was raised related to the validity of the s214 notice or notices. The point which is made in relation to the s214 notice is that, contrary to his Honour's finding, the notice was invalid because the collector had not appropriately authorised the investigating officer to have the documents produced for inspection. The s214 notice is not before me for the purposes of this application. 1 am not satisfied by the way in which this matter has been argued before me that the s214 notice is invalid as it is submitted and it follows that I am not sufficiently satisfied that his Honour erred in relation to that matter. The question of the validity of the s214 notices did raise an important evidentiary issue for' the claimants. Had the notices been invalid, as the claimants contended, the subject documents would have been unlawfully obtained, subject possibly to an argument that there was a common law power of seizure in any event. Assuming for the moment that there was no such argument, the issue would have arisen as to whether, as a matter of discretion, the trial judge could have admitted the evidence. Mr McGovern properly conceded that in that regard the trial judge would have had a discretion. The consequence of that proper concession is that even if, whether on this point of view or a subsequent point of view, the claimants were successful on appeal in having the s214 notices declared invalid that, of itself, would not have determined the admissibility of the subject evidence. The third point of principle raised was the interrelationship of s69 with s166, s167 and s168 of the Evidence Act. S69 might conveniently be referred to as the business documents provision. Mr McGovern submitted that that section interacted with the provisions in s166, s167 and s168 relating to the making of a request and the time limit for the making of a request. He argued that in this case the claimants had made a request URJ WONG v COMPTROLLER GENERAL OF CUSTOMS (Beazley JA) 3 which he submitted was made under s167 and that the trial judge wrongly held that that had not been made within the time limits specified by s168, nor had his Honour granted leave to make the request notwithstanding the failure to comply with the time limit. The difficulty with this submission is that s69, on its face, does not seem to me to require the giving of notice which would activate the right to make a request under s167. That leads me to the final point, that is, an examination of the extent and nature of the police powers of questioning under the Customs Act. Mr McGovern did not expand upon this issue. It may be an issue which is interrelated to questions which arise under the first issue, that is, the application of s86 in proceedings of this nature. It is correct to say that the four issues to which I have referred were issues directed to the serious aspect of the proper test to be applied in determining whether or not to grant a stay. It will be apparent from what I have said that I am not satisfied that the matters raised by Mr McGovern have strong prospects of success, notwithstanding that the question of whether the proceedings under Pt14 of the Customs Act are civil or criminal might be said to be one which is not yet finally determined. In support of a submission that the balance of convenience lay in the claimants' favour, Mr McGovern submitted that the point had come now in the trial as to whether or not the claimants should call evidence or not. He submitted that the first claimant was at a particular disadvantage in this regard because if he gave evidence he might find himself exposed to questions which might involve an admission of involvement, albeit knowingly-concerned in an offence under s29D of the Crimes Act 1914 (Cth) in respect of imposing on the Commonwealth. Whilst this might be so, the first claimant would be entitled to seek to refuse to answer questions which might involve such admission and whilst he might be then further exposed to the prospect that he would be ordered to answer, he would be still protected by the provision of the Evidence Act which would require the trial judge to give a certificate under s128. In my opinion, notwithstanding the difficulty which the first claimant may encounter in respect of the prospect of being questioned on issues which might tend to incriminate him under s29D of the Crimes Act and notwithstanding the difficulty that if he either refused to answer or was given a certificate under the Evidence Act his defence of these proceedings might be either prohibited or constricted, the reality of this case seems to me is this: The claimants can either give evidence or not. If they do not give evidence, they have their rights of appeal in the normal course. If they give evidence not only would the first claimant be protected in the way I have indicated, the claimants would have their rights of appeal at the conclusion of the proceedings in the ordinary course. On the assumption that those rights were exercised - and that assumption, of course, carries with it the assumption that a finding was made against them and a penalty imposed - they would have a right to seek a stay for the recovery of the penalty pending any appeal and such application could be dealt with in the normal course. In the circumstances, I am not satisfied that the trial ought to be interrupted. There is ample authority for the fact that proceedings once commenced ought to continue in the normal course and not be interrupted by interlocutory proceedings 4 UNREPORTED JUDGMENTS such as applications for leave to appeal. I recognise that there may be some cases where that principle ought to be overridden but it seems to me that the points of principle raised are not strong, nor the balance of convenience really in favour of the claimants. I would dismiss the Notice of Motion with costs.