Wootten v Dickson [2002] NSWSC 439

New South Wales Supreme Court

CITATION : Wootten v Dickson [2002] NSWSC 439 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13085/01 HEARING DATE(S) : 16 May 2002 JUDGMENT DATE : 22 May 2002

PARTIES : Alison WOOTTEN - Plaintiff Grant DICKSON - Defendant JUDGMENT OF : Brownie AJ at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Magistrate Sweeney JUDICIAL OFFICER :

COUNSEL : Mr C P O'Donnell - Plaintiff Mr P W Neil SC - Defendant SOLICITORS : Australian Government Solicitor - Plaintiff Coode & Corry - Defendant CATCHWORDS : Taxes and duties - customs and excise - importation of goods - meaning of "import". - Taxes and duties - customs and excise - importation of goods - meaning of "import" - offences - intention. LEGISLATION CITED : Customs Act 1901 Customs (Prohibited Imports) Regulations Wilson v Chambers and Company Pty Limited (1926) 38 CLR 131 R v He Kaw Teh (1985) 15 A Crim R 203 at 256 CASES CITED : Lyons v Smart (1908) 6 CLR 143 at 150 Bull (1974) 131 CLR 203 R v Kural (1987) 29 A Crim R 12 at 13 Maher v Musson (1934) 52 CLR 100 at 104 DECISION : Appeal dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BROWNIE AJ

22 May 2002

13085/01 Alison WOOTTEN v Grant DICKSON

JUDGMENT 1 HIS HONOUR: The plaintiff appeals from a decision of Magistrate Sweeney, who dismissed three informations laid by the plaintiff against the defendant. Each information alleged that, in breach of the provisions of s 233(1)(b) of the Customs Act 1901 the defendant imported certain substances that were prohibited imports. The offences were said to have occurred on 12, 22 and 29 July 2000, and the substances were prohibited imports in that they were anabolic or androgenic substances, within the meaning of various items in Schedule 8, and Regulation 5H of the Customs (Prohibited Imports) Regulations. 2 Except for a question about the defendant's state of mind, there was no dispute about the facts. The documents which became exhibits before her Worship were not in evidence before me, but the appeal proceeded on the basis that the facts were accurately stated in the written submissions lodged by the parties, dated 26 February and 29 May 2002, amplified by the transcript of the evidence in the Local Court, and by copies of the informations. 3 In July 2000 the defendant was a member of the Royal Australian Air Force, serving with the United Nations Forces in East Timor, within an organisation known as Operation Tanager. He was concerned about the need to supplement the diet that was then available to him, and ordered what he believed were products lawfully obtainable, from an entity described as Mass Quantity, located in New York. There was no ordinary postal service available in East Timor at that time, but the United Nations provided Internet facilities for persons such as the defendant. By this means he made inquiries, and then ordered the goods in question, intending them to be sent from New York to East Timor. The arrangement made by the Australian Defence Force for personnel serving in East Timor at that time was that mail could be forwarded to a serving member if it was addressed to that member, with a reference to the member's unit and the name of the operation with which the member was concerned, and by using the symbols AFP05, representing Australian Forces Post Office No. 5, this being the relevant number for East Timor. 4 The defendant ordered the goods from Mass Quantity, using this address, and the goods the subject of the alleged offences of 12 and 22 July 2000 were addressed to him in this way. He said that, in respect of the alleged offence of 29 July 2000 he had given Mass Quantity the same delivery address. However, the goods were in fact posted by Mass Quantity to him at RAAF premises at Richmond. He said, without challenge, that he had given the AFP05 address to Mass Quantity, in respect of this consignment, but it apparently posted the goods to him at the address taken from his credit card. Before he had left Australia to go to East Timor, he had made arrangements for any goods addressed to him at the Richmond address to be forwarded on to him at East Timor. 5 He gave detailed oral evidence, supported by documentary evidence, as to the factual matters that had led him to believe that the receipt by him of the goods the subject of the informations would not have been unlawful. Her Worship accepted his evidence, and I will summarise it only briefly. He was conscious that the use of anabolic steroids was unlawful, but believed that the substances he ordered could be lawfully used. The bases for this belief included statements he read in a book, statements in various magazines, statements on the Internet site of Mass Quantity, and from his observation of what was readily sold to the public in Hawaii, where he had formerly been. 6 The learned Magistrate dismissed the informations on the basis that the goods had not been imported into Australia. She went on to hold that, even if they had been imported into Australia, the defendant lacked the necessary intention, in relation to the categorisation of the goods as being prohibited imports. The plaintiff now appeals from each of these rulings.