Singh Gill & 1 ors -v- District Court of NSW & 1 ors [2001] NSWSC 386

New South Wales Supreme Court

CITATION : Singh Gill & 1 ors -v- District Court of NSW & 1 ors [2001] NSWSC 386 revised - 05/06/2001 CURRENT JURISDICTION: Administrative Law List FILE NUMBER(S) : SC 30072/00 HEARING DATE(S) : 1 May, 2001 JUDGMENT DATE : 22 May 2001

Parambir Singh Gill (A1) PARTIES : Tahnya Elizabeth Butterfield (A2) The District Court of New South Wales (R1) The Chief Executive Officer of Customs (R2) JUDGMENT OF : Newman AJ at 1

LOWER COURT District Court JURISDICTION : LOWER COURT 97/12/0973; 97/12/0974 FILE NUMBER(S) : LOWER COURT Dalgliesh AJ JUDICIAL OFFICER :

COUNSEL : SOLICITORS : R J Benson S Vorreiter CATCHWORDS : Stated case - Purpose of - Requirements as to contents of stated case - Criminal Appeal Act 1912 (NSW), s 5B Hansen v The Comptroller-General of Customs (1996) 130 FLR 72 Barendse v The Comptroller-General of Customs (1996) 93 A Crim R 210 The Australian Gas Light Company v The Valuer-General (1940) 40 SR(NSW) 126 CASES CITED : Madden (1995) 85 A Crim R 367 Cassell v Director of Public Prosecutions & Ors [2000] NSWCA 226 Jones v Dunkel (1950) 101 CLR 298 May v O'Sullivan (1955) 92 CLR 654 The Queen v Amenores (1980) 2 NSW 34 DECISION : The summons is dismissed with costs.

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NEWMAN AJ

22 MAY 2001 030072/00 - PARAMBIR SINGH GILL & 1 ORS v DISTRICT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The applicants claim that His Honour Acting Judge Dalgleish erred in law in refusing to state certain questions of law for the determination of the Court of Criminal Appeal. Additionally, the applicants seek orders ancillary to the primary relief claimed in the summons. 2 The proceedings which gave rise to the applicants seeking His Honour to state a case were appeals brought before His Honour from convictions recorded against the applicants in the Local Court. Before the Local Court the applicants had been charged with a number of offences contrary to the provisions of the Customs Act 1901. Those charges involved allegations of breaches of Sections 233 1(a), Section 234 1 (a), Section 234 D (1) and Section 236. Those charges had arisen from the importation into Australia of two motor vehicles, one a BMW and the other a Mercedes Benz on the 21st November 1992 by the applicants. Substantively, the charges involved allegations of smuggling, evading payment of duty, false statements and aid and abet each other in the commission of the other's primary offences. 3 Before both His Honour and the magistrate a prime issue which arose was the question of whether there was an onus upon the prosecution to establish the amount of customs duty payable. That question involved a consideration of decisions of the Court of Criminal Appeal in Hansen v The Comptroller- General of Customs (1996) 130 FLR 72 and Barendse v The Comptroller- General of Customs (1996) 93 A Crim R 210. It was submitted that a tension exists between these authorities, a tension which can only be resolved by the Court of Criminal Appeal. 4 In the event His Honour dismissed the appeals brought by the applicants. Thereafter the applicants sought to have a case stated for the Court of Criminal Appeal by His Honour in order that the question of how the determination of the amount of customs duty payable could be ventilated. The applicants sought to have four questions of law to be so forwarded. They are whether: (1) I erred in law in holding that it was not necessary for the prosecution to prove the customs value of the vehicles determined in accordance with Division 2 of Part VIII of the Customs Act 1901 ; (2) I erred in taking into account: (a) the purchase price of the vehicles "ex factory" in Germany; and (b) the alleged resale price of the vehicles in Switzerland; (3) I erred in not holding that the customs value should be calculated by using the sale price in Australia of comparable vehicles in the condition in which the imported vehicles were when imported in accordance with a "flexible" application of Section 161 C of the Customs Act 1901 ; (4) I erred in holding that it was open to me on my findings and on the evidence to hold that the offences as charged or any of them were made out. 5 His Honour, while prepared to forward the first of these questions for the consideration of the Court of Criminal Appeal, declined to state a case including questions 2, 3 and 4. Essentially the proceedings before this Court involve an argument raised by the applicants that His Honour should incorporate questions 2, 3 and 4 in the stated case. 6 The respondents contended that questions 2 and 3 were otiose because question 1 properly construed encapsulates the matters sought to be raised by questions 2 and 3. As to question 4 it was submitted that it raises a question of fact and not of law and that accordingly it is not a suitable matter to be included in a stated case. 7 As far as questions 2 and 3 are concerned I am of the view that the respondent has made out its argument. I so hold because in my view in order for the Court of Criminal Appeal to determine the first question it will have to deal with what the prosecution has to establish in terms of value to prove a case brought under the relevant sections of the Customs Act 1901. In so doing, the Court would deal with the matters which the applicants wish to ventilate by dent of questions 2 and 3. Accordingly I am of the view that those questions are, in fact, otiose and therefore inappropriate to be included in the stated case. It follows that I am of the view that His Honour was not in error in declining to so state. 8 I should add that before this Court the respondents' solicitor indicated that it would not seek to prevent an argument involving the matters which the applicants seek to raise in questions 2 and 3 to be argued in the determination of question 1. This concession reinforces my view that questions 2 and 3 are thus inappropriate for a stated case. 9 The final question involves a consideration of the distinction between the question of fact and law. Section 5B (2) of the Criminal Appeal Act 1912 allows the Court jurisdiction only to determine questions of law. In this State the classic exposition of the distinction between a question of law and fact was made by Jordan CJ in The Australian Gas Light Company and The Valuer-General (1940) 40 SR(NSW) 126 at 137. There Jordan CJ said "Before proceeding to the questions which have been submitted, it is necessary to keep in mind that this Court has jurisdiction to determine only questions of law and only such questions of law as are submitted to it. In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities: (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law: Girls' Public Day School Trust v. Ereaut ; Life Insurance Co. of Australia Ltd. v. Phillips ; McQuaker v. Goddard . This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence: Camden v. Inland Revenue Commissioners ; In re Ripon (Highfield)Housing Confirmation Order , 1938. White and Collins v. Minister of Health ; although evidence is receivable as to the meaning of technical terms: Caledonian Railway v. Glenboig Union Fireclay Co .; Attorney-General for the Isle of Man v. Moore ; and the meaning of a technical legal term is a question of law: Commissioners for Special Purposes of Income Tax v. Pemsel . (2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact: Girls' Public School Trust v. Ereaut ; Attorney-General for the Isle of Man v. Moore . (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences: Farmer v. Cotton's Trustees ; Currie v. Inland Revenue Commissioners ; Inland Revenue Commissioners v. Lysaght . (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences : In re Ripon (Highfield) Housing Confirmation Order, 1938. White & Collins v. Minister of Health , or (c) if it has misdirected itself in law : Farmer v. Cotton's Trustees ; Colonial Mutual Life Assurance Society Ltd. v. Federal Commissioner of Taxation. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law : Farmer v. Cotton's Trustees ; Mersey Docks and Harbour Board v. West Derby Assessment Committee and Bottomley, etc. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law: Farmer v. Cotton's Trustees ; Currie v. Inland Revenue Commissioners ; Inland Revenue Commissioners v. Lysaght ; Mersey Docks and Harbour Board v. West Derby Assessment Committee and Bottomley , etc ." [Citations omitted.] 10 In Madden (1995) 85 A Crim R 367 at 372 Hunt CJ at CL observed as follows:- "The requirement that the prosecution establish beyond reasonable doubt that something 'may' reasonably be 'suspected' is not an entirely clear concept. There is unfortunately no ratio upon this particular issue to be discerned from this Court's decision in Chan . Abadee J, as I have said, held that the inference which the section requires must be the strongest positive or definite of the inferences available. Mahoney JA held that where there were more than one suspicion which may reasonably be entertained, the court did not have to determine which was the most likely of the possible suspicions. I merely said that the weight to be given to each of the conclusions open upon the evidence was itself a question of fact, and that it was for the court to determine whether the conclusion which the section requires has been satisfied beyond reasonable doubt. All three of us, however, were agreed that the mere fact that there is more than one conclusion reasonably open upon the facts does not mean that, in law, the prosecution has failed to establish its case. That necessarily follows from the nature of the conclusion which the section requires. That unanimous determination by this Court is a sufficient answer to the principal question of law now posed for this Court's determination. I propose that that question be answered 'No'". [Citations omitted.] 11 In Cassell and Director of Public Prosecutions [2000] NSWCA 226, Sheller JA dealt with a similar matter as follows:- "Counsel for the claimant submitted that there was another inference open based on the failure of the Crown to call evidence that demonstrated the fact in issue. Reference was made to Jones v Dunkel (1950) 101 CLR 298. However, what his Honour was engaged in, as the passage I have quoted demonstrates, is a fact finding exercise. The High Court had held that the inference was clearly available. His Honour was satisfied that the fact was proved beyond reasonable doubt. Accordingly, in my view, question 3 in the stated case to the extent to which it goes beyond what has already been decided in the Court of Criminal Appeal and the High Court goes, not to a question of law, but to a question of fact and is not open to be raised under s5B. In light of some of the written submissions and some of the oral submissions, in regard to the consequence of a finding of a prima facie case I refer to what was said by the High Court in May v O'Sullivan (1955) 92 CLR 654 at 658: 'When, at the close of the case for the prosecution, a submission is made that there is "no case to answer", the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a "case to answer" has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact.' In my opinion the application should be dismissed." 12 In support of their contention that question 4 was an appropriate one to be submitted to the Court of Criminal Appeal, the appellants relied upon the case of The Queen and Amenores (1980) 2 NSWLR 34. 13 There, the Court without demurring dealt with the following two questions: B. Whether on the facts found by me the offence charged under Section 233 1 A of the Customs Act 1901 was made out; D. If the answer to B be in the negative it is open to me on my findings on the evidence to hold that the offence referred to therein was made out. 14 Those two questions were posed in a stated case arising as is this case from a District Court Appeal from the then Court of Petty Sessions. 15 It is true that question 4 as posed is in similar terms to the questions adverted to in the judgment of Street CJ in Amenores which I have cited above. It should be observed, however, that there appears to have been no challenge raised before the Court of Criminal Appeal in Amenores to the form of the questions. In my view the principles adumbrated by Jordan CJ in the AGL case and the application of principle by Hunt CJ at CL in Madden and by Sheller JA in Cassell are indicative that what is being raised here by question 4 involves a question of fact. Accordingly, I am of the view that question 4 is inappropriate in form. 16 It follows that I am of the view that the relief sought by the applicants in this summons should be declined. Accordingly, the summons is dismissed with costs. - oOo -