Comptroller-General of Customs v Stephen Edward Parker [2006] NSWSC 387

New South Wales Supreme Court

CITATION : Comptroller-General of Customs v Stephen Edward Parker [2006] NSWSC 387 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 12 - 15, 18 April 2005

JUDGMENT DATE : 8 May 2006

JUDGMENT OF : Simpson J

DECISION : Evidence admitted

CATCHWORDS : voir dire - admissibility of evidence - Customs prosecution - irregularity in manner in which evidence obtained - evidence obtained as the result of impropriety - Notice to Produce - lack of proper identification of goods said to have been illegally dealt with - powers conferred upon Customs officers - search warrant - power exercised under Customs Act - alternative power conferred by Crimes Act 1914 - balance between nature of offences and gravity of impropriety in obtaining evidence - extent of intrusion into the rights of the individual - no mala fides

Customs Act 1901 (Cth) s33(1), s214, s234(1)(a) LEGISLATION CITED : Crimes Act 1914 (Cth) s10 Evidence Act 1995 s138 Spirits Act 1906

PARTIES : Comptroller-General of Customs - Plaintiff Stephen Edward Parker - Defendant

FILE NUMBER(S) : SC 13933/92

COUNSEL : DJ Fagan SC with GM Elliott - Plaintiff DR Stack - Defendant

SOLICITORS : Australian Government Solicitor - Plaintiff Yeldham & Associates - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Monday 8 May 2006

13933/92 Comptroller-General of Customs v Stephen Edward Parker

REASONS FOR RULING ON EVIDENCE 1 HER HONOUR: This interlocutory judgment follows a voir dire hearing over a period of five days concerning the admissibility of evidence in the substantive proceedings. I ruled that the evidence in question would be admitted and proceeded with the hearing. These are my reasons for so ruling. The substantive proceedings involve the prosecution of Stephen Edward Parker (identified in the pleading as the third defendant, but the only defendant the subject of the present proceeding and henceforth referred to as "the defendant") for offences against the Customs Act 1901 (Cth) ("the Act"), alleged to have been committed by him in the late 1980s and the early part of 1990. At the outset of the proceedings counsel for the defendant raised objection to significant portions – indeed, virtually the whole – of the evidence by which the plaintiff proposes to prove the offences. The voir dire to which I have referred was accordingly conducted. Affidavits sworn by a number of witnesses were read, and most (if not all) deponents gave oral evidence and were cross-examined. 2 The objection to the evidence was taken under s138 of the Evidence Act 1995. The objection was that the evidence was obtained improperly and/or in contravention of an Australian law, and ought not to be admitted. S138 expressly provides that evidence so obtained is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. I take the last words to incorporate into the decision to admit or reject the evidence an evaluation of the nature and degree of, and motivation for, the impropriety or legal contravention that attended the obtaining of the evidence. (This would, in any event, appear to come within the relevant considerations set out non-exhaustively in subs(3), particularly sub-para (d).) Other relevant considerations required by subs(3) to be taken into account include the probative value of the evidence, its importance in the proceedings, the nature of (relevantly) the offences the subject of the proceedings, whether the impropriety or contravention was deliberate or reckless, whether it was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention, and the difficulty (if any) of obtaining the evidence without impropriety or legal contravention. All of these are, in greater or lesser degree, material to the present determination. 3 The plaintiff concedes that there was an irregularity in the manner in which the evidence under consideration was obtained. The concession is, however, not as extensive as the irregularities contended for on behalf of the defendant. I will return to this. 4 I now turn to outline the relevant circumstances. 5 During the late 1980s officers of the Customs Service of Australia ("Customs") conducted a very extensive investigation into the suspected adulteration of alcohol in various forms. The exercise was known as "Operation Ludwig". It ultimately resulted, inter alia, in the present prosecution in which the plaintiff alleges against the defendant offences contrary to s33(1) and s234(1)(a) of the Act. By March 1990 Operation Ludwig had reached a stage at which the officers were prepared to use powers conferred upon them by the Act and other legislation to obtain, by compulsion, documentary material in the possession of the individuals and companies. 6 The references to legislation that follow are references to the legislation as it stood at the time of the relevant events. 7 Relevantly, two statutory provisions were potentially available to enable the compulsory acquisition of the materials. 8 S214 of the Act relevantly provided as follows: "214(1) Whenever information in writing has been given on oath to the Collector that goods have been ... illegally dealt with, ... the owner shall immediately upon being required so to do by the Collector produce and hand over to him all books and documents relating to the goods so ... illegally dealt with ... and of all other goods imported or exported by him at any time within the period of five years immediately proceeding such request, seizure or detention ... (2) For the purposes of this section, the Comptroller or the Collector of Customs for a State or Territory may issue any officer of Customs or officer of police a Customs Warrant, in accordance with the form in Schedule V, marked with a Customs stamp. (2A) ... (2B) ... (3) If any person fails to comply with a requirement by the Collector under this section, an officer of Customs ... having with him a Customs Warrant in the form of Schedule V hereto, may, at any time of the day or night, break open and enter into any house, premises or place in which any books or documents relating to the goods are or are supposed to be, and search - (a) the house, premises or place; (b) any person therein or thereon; (c) any chests, trunks or packages therein or thereon; and take possession of, remove and impound any of those books and documents which are found." 9 The "Comptroller" referred to in s214(2) is, by s4 of the Act, the Comptroller-General of Customs, a position which does not appear to be otherwise defined in the Act, but who, by s7, is charged with the general administration of the Act. The "Collector", referred to in subs(1), is identified in s8(1)(a) as: "(i) any principal officer of Customs; or (ii) any officer doing duty in the matter in relation to which the expression is used ..."