HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND HAYNE JJCHIEF EXECUTIVE OFFICER OF CUSTOMS APPELLANT
AND
LABRADOR LIQUOR WHOLESALE PTY LTD & ORS RESPONDENTS
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd
[2003] HCA 49
5 September 2003
B46/2002ORDER
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.
On appeal from the Supreme Court of Queensland
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)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
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".
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.
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.
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 Lee[1], 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.
[1](1949) 80 CLR 198 at 217-218.
McHUGH J. I agree with the orders proposed by Hayne J and with his Honour's reasons.
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
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.
[2]Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2000) 179 ALR 563.
[3]Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2001) 188 ALR 493.
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.
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
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").
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".
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.
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.
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".
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 234(1) of the Customs Act.
The form in which all of these provisions are cast is significant. It indicates that what is sought against the respondents are convictions for offences against the laws of the Commonwealth. Ordinary understanding then would suggest that what is required for that result is proof beyond reasonable doubt. That conclusion the appellant calls into question. He seeks restoration of the answer given by the primary judge that the civil standard of proof applies.
Section 4 of the Crimes Act is of central importance in meeting the appellant's case. The section was inserted, with effect from 15 September 1995, by s 3 of the Crimes Amendment Act 1995 (Cth) ("the 1995 Act")[4]. It was in force at the time of the alleged commission of the offences and the taking of subsequent proceedings in the Supreme Court of Queensland. Section 4 was repealed with effect from 15 December 2001 by Sched 51 of the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) ("the Application of Criminal Code Act")[5]. However, given the sequence of events in this case, the operation of s 4 upon the present prosecution would be preserved by s 8 of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act").
[4]Previously, s 4 of the Crimes Act had stated:
"The principles of the common law with respect to criminal liability shall, subject to this Act, apply in relation to offences against this Act."
[5]Sched 51, Item 4.
Section 4 states:
"(1)Subject to this Act and any other Act, the principles of the common law with respect to criminal liability apply in relation to offences against laws of the Commonwealth.
(2)This section has effect despite section 80 of the Judiciary Act [1903 (Cth) ('the Judiciary Act')]."
The Explanatory Memorandum to the House of Representatives for the Bill for the 1995 Act stated one of its purposes, pending the enactment of the Bill for the Criminal Code Act 1995 (Cth), to be the application of the common law principles of criminal liability to all Commonwealth offences. The note to cl 3 of the Bill stated:
"Proposed subsection 4(1) provides that, subject to the Act or another Act, the principles of common law with respect to criminal liability apply to all Commonwealth offences. The omitted section 4 had only applied these principles to offences under the [Crimes Act]. Any other offence was dealt with according to the prevailing law of the particular State or Territory where it was committed. So a person committing an offence against such a law in Victoria, a common law jurisdiction, was treated differently to [a] person committing the same offence in Queensland, a Griffith Code jurisdiction.
Proposed subsection 4(2) provides that the section applies despite section 80 of the [Judiciary Act]. Section 80 was the means by which the principles were applied and will no longer operate in that manner with respect to the principles of criminal liability."
As to the common law principles of criminal liability, the general proposition stated by Professor Glanville Williams is in point[6]:
"Questions of burden of proof and presumptions are intimately bound up with the substantive law."
That scholar went on to repeat what Kitto J said[7] were the memorable words of Lord Atkin in Lawrence v The King[8]:
"[I]t is an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond reasonable doubt".
[6]Criminal Law, The General Part, 2nd ed (1961), §286.
[7]Thomas v The Queen (1960) 102 CLR 584 at 595.
[8][1933] AC 699 at 707.
As it happens, Glanville Williams' statement respecting the intimate connection between this burden of proof and the substantive law is further supported in Australia by the general provision now made, since the institution of this litigation, by further Commonwealth law. With effect from 15 December 2001, Ch 2 of the Criminal Code (Cth) ("the Criminal Code") applies to offences against the laws of the Commonwealth (s 2.2). The purpose of Ch 2 is to codify the general principles of criminal responsibility under the laws of the Commonwealth (s 2.1). Section 13.2 states:
"(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof."
It will be recalled that s 4 of the Crimes Act was repealed by Sched 51 of the Application of Criminal Code Act with effect from the commencement date of s 13.2 of the Criminal Code and is superseded by it. Section 4 now does not apply in relation to an offence to which Ch 2 of the Criminal Code applies[9].
[9]Section 3BB of the Crimes Act, added by the Application of Criminal Code Act, so provides.
However, there is now the following difficulty with Customs prosecutions. Whilst s 5AA(1) of the Customs Act[10] states that Ch 2 of the Criminal Code applies to offences against the Customs Act, that general provision is subject to the exclusion of Pt 2.6 of the Criminal Code. The exclusion is made by s 5AA(2)(b) of the Customs Act. Part 2.6 includes the provision respecting standard of proof in s 13.2. Further, s 5AA(4) of the Customs Act states that the section "is not to be interpreted as affecting in any way the standard or burden of proof for any offence under this Act that is the subject of a Customs prosecution". The term "Customs prosecution" is said to have the meaning given in s 244 of the Customs Act. What that standard of proof requires is left unspecified by s 5AA.
[10]Inserted by Sched 21 to the Application of Criminal Code Act.
The apparent intention of the Parliament in enacting s 5AA, as part of the Application of Criminal Code Act, was to leave unaltered the law respecting the Customs Act as it stood at 15 December 2001. What is the result? It may be that the Parliament has partly qualified the repeal of s 4 of the Crimes Act by the same statute as enacted s 5AA of the Customs Act. As to Customs prosecutions, was there left to operate in accordance with its terms the statement in s 4 of the Crimes Act that the principles of the common law with respect to criminal liability apply in relation to offences against laws of the Commonwealth? It is unnecessary here to determine that question. This appeal, given the relevant time scale and the operation in any event of the Interpretation Act, turns upon the application of s 4 in its pristine state.
Section 4 is expressly qualified by anything provided in "any other Act". Do any provisions of the Evidence Act 1995 (Cth) ("the Commonwealth Evidence Act") make provision qualifying what otherwise would be the operation of s 4 for the present appeal? The answer is in the negative. This is for several reasons. First, s 8(1) of the Commonwealth Evidence Act states that that statute "does not affect the operation of the provisions of any other Act". Secondly, the Commonwealth Evidence Act does not apply to the Supreme Court of Queensland, even in its exercise of federal jurisdiction. That is the result of s 4. Further, and in any event, s 141 of the Commonwealth Evidence Act, to which reference was made in argument, would confirm rather than deny the operation of s 4 of the Crimes Act. Section 141 states that in a criminal proceeding, the court is not to find the case of the prosecution proved unless it be satisfied of that proof beyond reasonable doubt.
The phrase "[s]ubject to ... any other Act" in s 4 of the Crimes Act is apt to identify the Customs Act itself. The submissions neither in this Court nor at first instance or in the Court of Appeal of Queensland took s 4 as their starting point. But that is what s 4 must be. However, the submissions do inferentially speak to s 4. They do so by asserting or denying, according to the stance of the party, the proposition that the Customs Act itself, upon its proper construction, requires no more than the civil standard.
In that regard, primary reliance was placed upon ss 244 and 247[11]. Section 244 is the first provision in Pt XIV (ss 244‑264), headed, as it has been since the enactment of the statute in 1901, "CUSTOMS PROSECUTIONS". At the relevant time for the purposes of the present appeal, the section stated[12]:
"Proceedings by the Customs for the recovery of penalties other than a pecuniary penalty referred to in section 243B under this Act or for the condemnation of ships, aircraft or goods seized as forfeited are herein referred to as Customs Prosecutions." (emphasis added)
The term "Customs" is defined in s 4 as meaning "the Australian Customs Service".
[11]Sections 133 and 136 of the Excise Act are in terms to corresponding effect of ss 244 and 247 respectively. They are found in Pt XI (ss 133‑153) headed "EXCISE PROSECUTIONS".
[12]Section 244 was repealed and substituted by Sched 3, Item 95 of the Taxation Laws Amendment (Excise Arrangements) Act 2001 (Cth).
Throughout the life of the Customs Act, Pt XIII has been headed "PENAL PROVISIONS" and has included two Divisions, Div 1 headed "Forfeitures" and Div 2 headed "Penalties". Section 234 relied upon in the present prosecution is included in Div 2. Other penal provisions are found elsewhere in the Customs Act. Section 33, also relied upon in this prosecution, is an example. The exclusion from s 244 of the pecuniary penalty referred to in s 243B has the effect of excluding the whole of Div 3 (ss 243A-243S) of Pt XIII. Division 3 is headed "Recovery of Pecuniary Penalties for Dealings in Narcotic Goods". Section 243B is the central provision in that Division and has no role in this appeal.
The prosecution here, as indicated, was instituted in the Supreme Court of Queensland, a step provided for in s 245(1)(a). That sub‑section speaks of the institution of Customs prosecutions "by action, information or other appropriate proceeding". Here, a writ of summons was employed in the Supreme Court. (Provision also is made in s 245(1) for the institution of proceedings in a State court of summary jurisdiction.)
The appellant then relies on s 247. This states:
"Every Customs prosecution in a court referred to in subsection 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge."
Section 248 also is to be considered. It provides, so far as relevant:
"Subject to the provisions of this Act the provisions of the law relating to summary proceedings in force in the State ... where the proceedings are instituted shall apply to all Customs prosecutions before a Court of summary jurisdiction in a State". (emphasis added)
The opening words of s 248 subject its provisions to s 247. Section 247 applies in its terms to every Customs prosecution in any court referred to in s 245(1), that is to say, superior courts and courts of summary jurisdiction.
Upon its proper construction, s 247 requires every Customs prosecution, whatever the court designated in s 245(1) may be, to be commenced, prosecuted and proceeded with in one of the three modes set out in s 247. For present purposes, no question arises respecting the repository of the power of choice apparently conferred by the term "may" in s 247.
In his reasons for judgment, Hayne J details the content of the expression in s 247 "rules of practice (if any) established by the Court for Crown suits in revenue matters". Whilst the procedures in the Court of Exchequer and its successors in England[13] appear to have some similarities with criminal procedure, there are dangers in enforcing a system of classification containing but two classes, civil and criminal. So, as Frankfurter J put it[14]:
"Punitive ends may be pursued in civil proceedings, and, conversely, the criminal process is frequently employed to attain remedial rather than punitive ends."
[13]Including, until 1881, the Exchequer Division of the High Court of Justice and thereafter the Queen's Bench Division: Halsbury, The Laws of England, 1st ed, vol 9, §125. See also the judgment of Atkinson J (2000) 179 ALR 563 at 566.
[14]United States ex rel Marcus v Hess 317 US 537 at 554 (1943). See also Austin v United States 509 US 602 at 609‑610 (1993).
The immediate task is not to ponder what is an imprecise dichotomy but to construe Pt XIV of the Customs Act. This deals on the one hand with the recovery of penalties and on the other with forfeiture. As to forfeitures, the operative order identified is one for condemnation or of dismissal; for penalties it is conviction.
There is a long history in this field of distinction between forfeitures and penalties and it is reflected in these provisions of Pt XIV of the Customs Act. The same is true of Pt X of the Excise Act, which, like Pt XIII of the Customs Act, is headed "PENAL PROVISIONS" and deals distinctly with forfeitures and penalties. One outcome of that history in the United States has been that in some decisions civil penalties such as fines have been distinguished from forfeitures so that the latter do not constitute punishments under the double jeopardy clause of the Constitution[15].
[15]United States v Ursery 518 US 267 at 274‑288 (1996).
What is of present importance is that the legislation in respect of contravention of which the appellant sought remedies against the respondents by action commenced in the Supreme Court of Queensland in terms identified offences which upon the establishment of guilt lead to conviction and punishment. The matter of the applicable standard of proof is, upon the proper construction of s 4(1) of the Crimes Act, one of the principles of the common law "with respect to criminal liability".
That conclusion is not displaced by anything in the Customs Act, in particular by any of the three branches of s 247. The text of s 247 has been set out earlier in these reasons. The corresponding provision in the Excise Act is s 136. Reference has been made to the first branch of s 247, that dealing with rules of practice in revenue matters. None such were ever established in the Supreme Court of Queensland and, in any event, a displacement of s 4 of the Crimes Act would not be achieved by a "rule of practice". Nor is the third limb of s 247 sensibly to be construed as effecting a displacement of s 4 merely by empowering the giving of a direction by the particular court. Substantive rights are involved. That being so, the second limb of s 247 has no relevant operation. It refers to "the usual practice and procedure of the Court in civil cases". The same construction applies to s 136 of the Excise Act.
I agree with what Hayne J says respecting the significance of the averment provisions of both the Customs Act and the Excise Act. I also agree with the discussion by Hayne J of the nineteenth century English decisions of Attorney-General v Radloff[16] and Attorney General v Bradlaugh[17], and of the earlier decisions of this Court. It should be added that these and other Australian decisions predate the enactment in 1995 of s 4 of the Crimes Act. Indeed, the state of decision may illustrate a mischief in the federal statute law to which s 4 was directed.
[16](1854) 10 Ex 84 [156 ER 366].
[17](1885) 14 QBD 667.
Admissibility of documentary evidence
I turn to consider the remaining questions, those concerned with the application of the Queensland Evidence Act. The questions were poorly framed. They appeared wrongly to assume that the Queensland statute might of its own force operate in the exercise of the federal jurisdiction with which the Supreme Court was invested[18]. The questions are best understood as requiring consideration whether any, and if so what, law of the Commonwealth renders the Queensland Evidence Act and, in particular, s 92 thereof, applicable to the proceeding instituted in the Supreme Court by the appellant.
[18]cf Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136.
Section 92 is stated to apply only in any proceeding which is not a criminal proceeding. The term "criminal proceeding" is defined in s 3 as including a proceeding wherein a person is charged with a simple offence, and an examination of witnesses in relation to an indictable offence.
Section 68(1) of the Judiciary Act renders the laws of the State of Queensland respecting the procedure for summary conviction and for trial and conviction on indictment of persons charged with offences against State laws applicable, subject to the balance of s 68 and only in so far as those State laws are applicable to persons charged with offences against the laws of the Commonwealth. Section 92 of the Queensland Evidence Act is not a provision respecting the procedure for the trial of offenders against the criminal law. Therefore, s 68 has no application.
Section 79 of the Judiciary Act is expressed more broadly. It is unnecessary to enter into the question of the interrelation between s 68 and s 79. Section 79 renders the laws of Queensland binding on the Supreme Court of Queensland in the execution of federal jurisdiction in Queensland but only in cases to which those State laws are applicable. Further, s 79 operates "except as otherwise provided by ... the laws of the Commonwealth". That exception applies to exclude any application of s 79 to this case.
Here, there are other such laws of the Commonwealth which make specific provision for the "picking up" of certain State laws. They are s 247 of the Customs Act and s 136 of the Excise Act. The text of s 247 is set out earlier in these reasons. As there remarked, the section applies to "Customs Prosecutions", a term so defined in s 244 as to include prosecutions for the recovery of penalties for offences against the Customs Act. Likewise, s 136 of the Excise Act applies to "Excise Prosecutions", defined in s 133 to include proceedings for the recovery of penalties under that Act.
Section 247 of the Customs Act and s 136 of the Excise Act thereby both contemplate and overcome any incongruity otherwise apparent in the application of s 92 of the Queensland Evidence Act to the prosecution of the present respondents. They do so by stipulating for the prosecution to be proceeded with in accordance with the usual practice and procedure of the Supreme Court of Queensland in civil cases. The question of the admissibility of documentary evidence to facts in issue, the topic dealt with in s 92, falls within the ordinary meaning of the expression "the usual practice and procedure of the [Supreme] Court [of Queensland] in civil cases".
For the foregoing reasons, I support the making of the orders proposed by Hayne J.
KIRBY J. This appeal concerns questions reserved by the Supreme Court of Queensland relating to the proof of offences against the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) with which the respondents have been charged. It presents questions upon which the law does not speak with a clear voice.
The facts, legislation and issues
The facts[19] and the course that the proceedings took in the Supreme Court of Queensland[20] are set out in the reasons of Hayne J. So are the relevant provisions of the two Acts of the Federal Parliament that have given rise to the appeal[21]. As there explained, the Acts, and their English predecessors, have a long history in which may be found the seeds of the problems that now fall for resolution[22].
[19]Reasons of Hayne J at [98].
[20]Reasons of Hayne J at [99]-[100].
[21]Reasons of Hayne J at [101]-[102]. See also reasons of Gummow J at [11]-[13].
[22]Reasons of Hayne J at [101]-[107].
The ambivalence of contemporary Australian customs and excise legislation concerning the issues that divided the judges of the Supreme Court of Queensland (from whose orders this appeal comes[23]) resonates, to some extent, with the issues that evenly divided the Court of Exchequer Chamber in England almost 150 years ago[24]. Those issues relate to the classification of particular aspects of proceedings brought for breach of revenue laws.
[23]Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2000) 179 ALR 563 (per Atkinson J); Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2001) 188 ALR 493 (per Thomas JA and Byrne J; McMurdo P dissenting in part).
[24]In Attorney-General v Radloff (1854) 10 Ex 84 [156 ER 366]. See reasons of Hayne J at [118].
The source of the differences of judicial opinion in 1854 and now is fundamentally the same. It lies in an omission of the legislature to enact provisions that, so far as possible, are unmistakably clear, setting out the rules to be applied in the proof of offences so that there is no doubt as to whether the legal regime applicable is that normally followed in a criminal trial or that normally observed in the trial of a civil proceeding.
In England, in 1854, the question was presented in the context of an attempt by the accused's counsel to call the accused himself as a witness in support of the defence case. At that time, that course was forbidden by the general law governing criminal trials. In the present case, two issues of controversy, equally fundamental, were separated for decision. The first was whether, in the proceedings under the two federal Acts alleging offences against the accused, the standard of proof borne by the prosecutor ("the Customs"), in order to establish the elements of the offences, was that ordinarily required in the case of proof of a criminal offence (that is, proof beyond reasonable doubt). Or was it the standard ordinarily applied in establishing a civil claim (that is, proof on the balance of probabilities; but with appropriate regard to the nature of the proceedings, the issue to be proved and the gravity of the matters alleged[25])?
[25]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 per Dixon J; cf Evidence Act 1995 (Cth), s 140(2). See Anderson, Hunter and Williams, The New Evidence Law (2002) at 526-527. In the United States, the Briginshaw standard is described as requiring "clear and convincing evidence". It is sometimes expressly provided by law eg Customs Courts Act of 1980, 28 USC §2639(b).
The second issue separated at the trial concerned what provisions of the Evidence Act 1977 (Q) would be applied in the prosecution by force of federal law. As re-expressed in this Court, the second issue questioned whether the provisions of that Act applicable to civil cases in Queensland (and in particular s 92 of that Act[26]) were applicable to the trial of the respondents for their alleged offences against the two federal Acts.
[26]The Evidence Act 1977 (Q), s 92 provides for the admissibility of documentary evidence as to facts in issue "[i]n any proceeding (not being a criminal proceeding)".
In the conduct of the respondents' trial, the Supreme Court of Queensland exercises federal jurisdiction. As such, it is required to conform to applicable federal law. However, federal law, in turn, applies to such proceedings the laws of the State concerned, "including the laws relating to procedure [and] evidence … except as otherwise provided by … the laws of the Commonwealth"[27].
[27]Judiciary Act 1903 (Cth), s 79. See also Evidence Act 1995 (Cth), s 64.
A third, contingent, issue of a constitutional character was raised defensively by the respondents. The respondents submitted that, if, contrary to their principal argument, this Court was persuaded that, on a proper construction of the federal Acts, proof of their guilt of the elements of the offences alleged against them was to be determined according to the civil standard of proof, such a construction would offend s 71 of the Constitution, be beyond the legislative power of the Federal Parliament and thus be inapplicable to their proceedings. By this issue, the respondents sought to invoke what they described as a "general guarantee of due process" contained in Ch III of the Constitution[28].
[28]Relying on Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580 per Deane J; Dietrich v The Queen (1992) 177 CLR 292 at 326, 362 and McHugh, "Does Chapter III of the Constitution protect substantive as well as procedural rights?", (2001) 21 Australian Bar Review 235 at 238-240.
In his reasons[29], Hayne J concludes that the questions separated in the Supreme Court should be reworded and, as so expressed, should be answered by making it clear that the "elements of the offence" charged against each respondent respectively under each of the federal Acts in question "must be established beyond reasonable doubt"[30]. His Honour also concludes that the provisions of the Evidence Act 1977 (Q) that would be applied in the Supreme Court of Queensland in civil cases[31] (including s 92 of that Act) are to be applied in the trial of the proceedings brought against the respondents in respect of their alleged offences against the federal Acts. In light of the first of these conclusions, in which the other members of the Court join, the constitutional issue does not arise for decision.
[29]With which Gleeson CJ and McHugh J agree.
[30]Reasons of Hayne J at [150].
[31]That is, in the exercise of State jurisdiction.
Common ground and points of difference
Upon certain matters, I fully agree in the reasons of Hayne J and also in the separate reasons of Gummow J. First, it is clear that the Evidence Act 1977 (Q) cannot of its own force, in any circumstances, apply to proceedings against the respondents under the Customs Act or the Excise Act. Those statutes are federal laws. The court hearing proceedings under them is exercising federal jurisdiction. It can only apply State law to such proceedings with the authority of federal law[32]. The terms in which the questions concerning the Evidence Act 1977 (Q) were expressed appear to assume otherwise. They must therefore be amended. The answer given must reflect this basic feature of our constitutional arrangements.
[32]Reasons of Gummow J at [35]-[40]; cf R v Gee (2003) 77 ALJR 812; 196 ALR 282.
Secondly, the questions to be answered require close examination of the applicable laws, most especially the terms, and intended operation, of the Customs Act and the Excise Act. A strict dichotomy between "criminal" and "civil" proceedings is not always observed in Australian legislation. In the end, what is necessary is a conclusion about the requirements of the statutes principally in question and how they are intended to operate. As Hayne J has demonstrated, the history of revenue statutes (of which the Customs Act and the Excise Act are modern examples) indicates that sometimes proceedings under them take on features normal to the general rules governing criminal and sometimes civil trials. Generalities, unconnected with the specific provisions of the two federal Acts, may fall short of providing the solutions called for in this appeal.
On the other hand, in the end, on the first issue, it is necessary to classify the subject proceedings in a general way. This task can only be accomplished by reference to the usual features of criminal, as distinct from civil, proceedings. In Australia, one such usual feature is that normally a proceeding resulting in a "conviction" is classified as criminal. To secure such a "conviction" the prosecutor must accept the burden to prove all of the elements of the alleged offence by a standard of proof described as "beyond reasonable doubt".
Thirdly, as Gummow J points out[33], the Judiciary Act 1903 (Cth) does not contain the provision specifying the common law to be applied to the proceedings brought, in this case, under federal statutory law and tried in a Queensland court exercising federal jurisdiction[34]. It was s 4 of the Crimes Act 1914 (Cth)[35], as applicable at the time of the alleged offences, that governed the law as to the "criminal liability" of the respondents. It provided that, subject to federal law, such "criminal liability" was to be determined in accordance with "the principles of the common law". I agree with Gummow J that the usual principles as to burden and standard of proof of a criminal charge are, within s 4 of the Crimes Act, "principles of the common law with respect to criminal liability". They were therefore picked up and applied by s 4 of the Crimes Act to the liability of the respondents in the prosecutions brought against them for customs and excise offences. This was so by force of federal legislation specifically so providing.
[33]Reasons of Gummow J at [15].
[34]Whether the Judiciary Act, ss 68, 79 or 80 or otherwise.
[35]Set out in reasons of Gummow J at [16].
This is the starting point for ascertaining the answer to the separated questions. Section 4 of the Crimes Act cannot be ignored because, the relevant law having been enacted in statutory form with particularity and by the Federal Parliament, it must be obeyed as the source of the law governing the case. It cannot be overridden, varied or altered by the more general provisions of the Judiciary Act which, in any case, take the reader back to the particular terms of s 4 of the Crimes Act. In so far as there is a difference between Gummow J and Hayne J[36] on this point, I prefer the opinion that Gummow J has expressed.
[36]See reasons of Hayne J at [134].
There remains one matter upon which I would depart from the reasons of Hayne J. This relates to the view stated concerning the significance of the penal consequences of customs and excise prosecutions for the classification of such proceedings. His Honour concludes that characterising the particular forms of relief sought in particular proceedings as "penal" offers little or no assistance in deciding what standard of proof is to be applied[37]. I accept that statutory penalties exist that represent a kind of hybrid, lying somewhere between compensation, restitution and restoration (the usual business of civil process) and punishment and public denunciation (the usual business of criminal process). However, where the remedy provided envisages a public "conviction" of an "offence" and the imposition of a "penalty", which in some circumstances in the case of a natural person is backed up by the possibility of imprisonment, it is easier than otherwise to come to a conclusion that the proper classification of the proceedings is criminal. This is especially so when such proceedings are contrasted with proceedings in which the legal sanctions involve reparation to a party, such as in the form of a money payment. In our form of society, loss of liberty as a punishment, in particular, is ordinarily one of the hallmarks reserved to criminal proceedings conducted in the courts, with the protections and assurances that criminal proceedings provide.
[37]Reasons of Hayne J at [139].
Three elements of hesitation
Putting these considerations to one side, three matters cause me to hesitate before embracing the conclusions reached by the other members of this Court. They are:
(1)That the answers proposed to the first two separated questions, as reframed, appear to conflict with holdings or assumptions expressed by Justices of this Court concerning the standard of proof applicable to establishing the elements of the offences charged in such trials and to be inconsistent with the trend of authority in other Australian courts deciding that issue;
(2)That the answers to the first two questions appear, upon one view, to contradict the express instruction of the Federal Parliament in s 247 of the Customs Act (and the equivalent provisions of the Excise Act[38]) requiring (with emphasis added) that every such prosecution in a court may be "proceeded with … in accordance with the usual practice and procedure of the Court in civil cases"; and
(3)That the apparent discordancy of the answers provided to the first two questions and the terms of the legislation is given emphasis by the answers proposed to the third and fourth questions. Thus, if the proper understanding of the federal Acts and decisional law is to the effect that the standard of proof for the establishment of the elements of the offence is, where a conviction is sought, the criminal standard (beyond reasonable doubt), it seems odd that the State evidence law governing civil cases is rendered applicable by federal law to the trial of such offences in a State court, including in a case in which that State law expressly excludes its application to "a criminal proceeding"[39].
[38]s 136.
[39]Evidence Act 1977 (Q), s 92.
I shall deal with each of these concerns in turn.
The state of decisional authority
Earlier court decisions: The starting point for an examination of the first hurdle is an appreciation that the question for decision has not, as such, previously arisen for resolution by this Court.
It is true that on a number of occasions the issue has been "touched upon" by Full Courts of this Court[40] in proceedings concerned with legislation other than the two federal Acts under consideration in this appeal. Those two Acts, being amongst the earliest statutes passed by the Federal Parliament, were the source of a template that was copied, with minor variations, in a number of later federal statutes[41].
[40]Naismith v McGovern (1953) 90 CLR 336 at 340-341.
[41]eg Sales Tax Assessment Act (No 1) 1930 (Cth), s 57 (repealed); Income Tax Assessment Act 1936 (Cth), s 237 (repealed); Pay-roll Tax Assessment Act 1941 (Cth), s 53; Stevedoring Industry Charge Assessment Act 1947 (Cth), s 46 (repealed); States Receipts Duties (Administration) Act 1970 (Cth), s 72 (repealed).
In Naismith v McGovern[42] and in Mallan v Lee[43], the Full Court of this Court considered the nature and incidents of the offences created by s 230 of the federal income tax legislation. That section provided offences against that legislation in some ways similar to those in question here. Nevertheless, the precise questions decided in Naismith and Mallan, both as a matter of legal authority and of substance, were different from the questions that must now be resolved. The present questions concern the Customs Act and Excise Act and the different attributes of the proceedings for which they respectively provide.
[42](1953) 90 CLR 336.
[43](1949) 80 CLR 198.
This said, it is fair to state, as the Customs did, that much decisional law, in this Court[44], by a Justice before his appointment to this Court[45], by intermediate appellate courts[46] and by single judges after careful examination of authority[47], has concluded that the standard of proof applicable to prosecutions of offences of the kind in question is the civil and not the criminal standard.
[44]eg R v McStay (1945) 3 AITR 209 at 212; McGovern v Hillman Tobacco Pty Ltd (1949) 4 AITR 272 at 275.
[45]Jackson v Butterworth [1946] VLR 330 at 332 per Fullagar J; Jackson v Gromann [1948] VLR 408 at 411 per Fullagar J.
[46]eg Evans v Lynch [1984] 3 NSWLR 567 at 570; Evans v Button (1988) 13 NSWLR 57 at 73-75; Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 17 WAR 499 at 503; Wong v Kelly (1999) 154 FLR 200 at 209-210 [57]-[64]; Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395 at 414-415 [77]-[80], 415 [82], 415-416 [86]-[87]. Some of these cases concern prosecutions in summary jurisdictions upon which see Customs Act, s 245(1).
[47]eg Button v Evans [1984] 2 NSWLR 338 at 349-353; Comptroller-General of Customs v Jayakody unreported, Supreme Court of Victoria, 9 November 1993 per Byrne J; Chief Executive Officer of Customs v Amron (2001) 164 FLR 209 at 226 [59]-[60]; Chief Executive Officer of Customs v Nasher (2002) 130 A Crim R 148; Chief Executive Officer of Customs v Australian Petroleum Supplies Pty Ltd [2002] VSC 223.
True, there are contrary indications in the course of this judicial authority. The penal features of the statutory language ("offence", "prosecution"), the nature of the consequences ("conviction") and the public purposes of the applicable law have led some judges to contrary conclusions concerning the standard to be applied to the proof of the elements of the offence. In a number of instances where the question of the standard of proof arose in this Court, individual Justices have held, or assumed, that the criminal standard would apply to the proof of the offence[48]. There are suggestions of similar opinions in dicta in this Court concerning the approach to be taken to penal laws generally[49]. There are like remarks of an explicit[50] and implicit[51] character in other courts. I emerge from a reading of these authorities without a conviction that they point in a consistent direction.
[48]Henty v Bainbridge-Hawker (1963) 36 ALJR 354 per Owen J (the relevant extract, not there reproduced, is noted in Button v Evans [1984] 2 NSWLR 338 at 351); Scott v Geoghegan & Sons Pty Ltd (1969) 43 ALJR 243 at 246 per Taylor J.
[49]eg R v Associated Northern Collieries (1910) 11 CLR 738 at 741; Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131; R v Adams (1935) 53 CLR 563 at 567-568; He Kaw Teh v The Queen (1985) 157 CLR 523; Waugh v Kippen (1986) 160 CLR 156 at 164.
[50]Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 85 A Crim R 517 at 523.
[51]Murphy v KRM Holdings Pty Ltd (1985) 8 FCR 349 at 353-354; Ludwigs Canberra Bond Cellar Pty Ltd v Sheen (1982) 46 ACTR 13 at 23; Research and Development Engineers Pty Ltd v Lanham (1983) 49 ALR 351 at 365; Stitt v CBI Constructors Pty Ltd (1990) 93 ALR 325 at 339.
Opinion in the Brabham case: This lack of clarity in judicial authority has not changed in the 15 years since I last considered the features of a "Customs prosecution for the recovery of a penalty". Re-reading what I said in Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce[52] ("Brabham"), I see no reason to alter the opinion expressed there. Indeed, the intervening years, and many more cases, have reinforced the conclusion I then stated[53]:
"[F]or some purposes the nature of a Customs prosecution for the recovery of a penalty may be assimilated to civil process (as s 247 contemplates). However, that does not stamp on such proceedings, for all purposes, the badge of a civil action. It could scarcely be so, having regard to the nature of such proceedings, for the reasons pointed out by Mahoney JA in Evans v Button[54]. A long series of cases, including in the High Court of Australia, dealing with s 247 and its equivalents in other statutes had made the point that the section has a hybrid characteristic[55]. Thus the fact that … proceedings for the recovery of a statutory penalty do not amount to a 'criminal cause or matter' cannot determine the question now before this court … In many cases the distinction between civil and criminal proceedings will be academic as it was in McGovern v Hillman Tobacco Pty Ltd[56]".
[52](1988) 85 ALR 640.
[53](1988) 85 ALR 640 at 652.
[54](1988) 13 NSWLR 57 at 73.
[55]R v Associated Northern Collieries (1910) 11 CLR 738 at 741.
[56](1949) 4 AITR 272 at 275 per Williams J (HC).
In Brabham, the Court of Appeal of New South Wales was not concerned with the applicable standard of proof. Instead, it had to identify the character of the proceedings for the purpose of deciding the rule applicable to an accused's application for a stay of prosecution on the ground that its continuance was oppressive or unjust. According to authority, accepted in that case, such a stay might be granted in civil[57] as well as criminal proceedings. However, because, in the case of civil proceedings, it was normal to invoke a statute of limitations (such as exists for prosecutions under the Customs Act[58]), and because of the other incidents of civil proceedings, courts are more reluctant to provide stays in such proceedings than in criminal proceedings found oppressive or unjust.
[57]Birkett v James [1978] AC 297; Stollznow v Calvert [1980] 2 NSWLR 749; Herron v McGregor (1986) 6 NSWLR 246 at 253 per McHugh JA.
[58]Customs Act, s 249.
It was in the context of the classification of the proceedings in Brabham for that purpose that I remarked[59]:
"… I do not consider that s 247 alters the fundamental nature of the present proceedings. They remain proceedings based upon provisions found amongst the penal provisions of the Act. They are brought to recover penalties for 'offences'. Such penalties are imposed when a person is found 'guilty' of an 'offence' which is 'punishable' upon 'conviction'. The offences are expressed in terms of criminal wrongdoing. At the relevant time, the conviction, although not immediately resulting in a risk of imprisonment, could lead on to loss of liberty for a second conviction. Conviction necessarily involves public opprobrium and condemnation for such an offence is one against the public law[60]. Seeking to characterise these proceedings for the purpose of the application of the relevant rule for a stay for abuse of process, they are much more closely akin to criminal proceedings, properly so called, than to purely civil litigation between parties."
[59]Brabham (1988) 85 ALR 640 at 653 (original emphasis).
[60]Evans v Button (1988) 13 NSWLR 57 at 74 per Mahoney JA.
Brabham, and many decisions before and since (including in this Court), illustrate the importance of the point upon which Hayne J insists in his reasons in this case. With it I agree. Given the ambivalent elements in the provisions of the federal Acts in question (and what I call the "hybrid" characteristics of the proceedings envisaged in the two Acts), two important considerations must be kept in mind. The first is that it is erroneous to seek "to classify proceedings as either 'criminal' or 'civil' such that never the twain would meet"[61]. The two categories do not cover the relevant universe[62]. Secondly, in applying particular rules or procedures characteristic of criminal or civil proceedings to the provisions of the federal Acts (or in deriving inferences from the legislation as to the availability or unavailability of such rules or procedures) it is essential to address the precise question that has to be resolved. There is no universal approach that can be adopted whatever the question in issue or the procedure to be classified. In each case, it is necessary for the identified purpose to focus attention on the precise statutory language.
[61]Brabham (1988) 85 ALR 640 at 650.
[62]Reasons of Gummow J at [30]; reasons of Hayne J at [114].
Conclusion – an open question: It follows that, although I would be prepared to concede that much previous judicial authority, probably a preponderance of it, supports the Customs' submission that the standard of proof to be applied in the prosecutions of the respondents is the standard applicable in civil cases, no binding rule of this Court so holds. Conflicting opinions have been expressed on the point, including in this Court. Accordingly, it is necessary to resolve the controversy in the usual way. This means starting with the requirements of the legislative language. To the extent that that language is ambiguous or uncertain, regard may be had to analogous developments of the law and to relevant considerations of legal principle and legal policy[63].
[63]Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252; Northern Territory v Mengel (1995) 185 CLR 307 at 347; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 at 53 [67]; 192 ALR 561 at 578-579 ("Daniels Corp").
Requirements of the statutes and legal policy
Requirements of the Acts: The provisions of s 247 of the Customs Act (and the equivalent provisions in the Excise Act[64]) obviously contain a critical instruction of the Parliament concerning the approach that is to be taken to prosecutions of the kind involved in these proceedings. So long as the provision in the law is constitutionally valid (a question contingently raised by the respondents) it is the duty of courts to give effect to it. Consonant with authority, they may do so with greater confidence because the provision relates to the conduct of prosecutions "in a court". In terms, provisions such as s 247 accord a large measure of control over the prosecution to the "Court or a Judge" concerned. Legislation of this kind is normally given an ample interpretation because of the designated repository of the stated powers[65].
[64]s 136.
[65]Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185-191, 202-203, 205; Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 420-421; CDJ v VAJ (1998) 197 CLR 172 at 201 [110]; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 423-424 [110].
Three other features of the language of s 247 are relevant to the approach to be taken to its ambit. The first is the very broad scope of the section which applies to "[e]very Customs prosecution in a court".
Secondly, the section, on its face, reflects both its historical origins[66] and the residual provision it makes for the observance of "the usual practice and procedure of the Court in civil cases". Without knowing of the history of prosecutions in revenue cases for debts to the Crown, the instruction of s 247 of the Customs Act[67] would seem remarkable, even astonishing. This is because, normally, one would expect that the statutory features and the predominantly penal character of such prosecutions would attract the general rules of practice and procedure observed in criminal cases. The history of Crown revenue law helps to explain the origins of s 247 (and its equivalent in the Excise Act). But it does not diminish the exceptional particularity of the provision by which the Parliament has stated its will.
[66]In its reference to "rules of practice (if any) established by the Court for Crown suits in revenue matters". This is explained in the reasons of Hayne J at [118].
[67]And of its equivalent in the Excise Act, s 136.
Thirdly, there never having been in this country rules established for Crown suits in revenue matters and no particular directions having been given by the court or a judge in the respondents' proceedings, attention is focussed on the remaining phrase in s 247. This is the portion of the section that would ordinarily be applied and which applies to this case. In terms, it imports into prosecutions, such as those commenced in these proceedings, "the usual practice and procedure of the Court in civil cases". The issue, so far as this legislative instruction is concerned, is whether the standard of proof applicable to the establishment of the elements of the offence falls within that phrase.
With Hayne J[68], I would accept that the topic of the standard of proof in legal proceedings is one that is quite commonly addressed in Australian law as an aspect of the law of evidence. It is so treated in the Evidence Act 1995 (Cth)[69]. There are similar provisions in earlier federal legislation. Thus s 79 of the Judiciary Act, providing for the applicability of State and Territory laws to courts exercising federal jurisdiction, enacts that such "laws relating to procedure, evidence, and the competency of witnesses, shall … be binding on all Courts". In federal legislation, the specified subjects have long been treated as aspects of adjectival law, suitable on the face of things to be "picked up" and applied in federal proceedings.
[68]Reasons of Hayne J at [122].
[69]Pt 4.1 (ss 140-142).
However, it is at this point that I feel the hesitation that I have expressed to embracing the reasoning of Hayne J. When I take into account the scope of the language of s 247 (and its equivalent in the Excise Act), the words used, the historical and unusual content of the legislative instruction, the power it gives to the courts and the setting of the provisions in federal statute law more generally, I find it difficult to say that this particular aspect of the adjectival law of evidence (the standard of proof) cannot, as a matter of language, be included in the phrase "the usual practice and procedure of the Court in civil cases". Unlike Hayne J[70], I do not regard the words in the section that surround the reference to "the usual practice and procedure of the Court" as throwing much light on the meaning of the critical phrase.
[70]Reasons of Hayne J at [125].
I accept (as the cases demonstrate) that the intended ambit of "the usual practice and procedure of the Court in civil cases" is not beyond doubt. In one sense, the determination of the standard of proof in a particular proceeding is a matter of evidence law and thus of "practice and procedure". Yet in another sense it is something more fundamental[71]. It relates to the very character of the proceeding. It is not a matter of detail for the carrying on of the proceeding. It is an attribute of the proceeding that ultimately governs the evaluation of the accusation when the evidence for the prosecution is completed. In this sense, it concerns substantive criminal liability.
[71]See reasons of Gummow J at [17], [32] where he discusses common law principles of criminal liability.
Whilst the assignment of the burden of proof and the identification of the standard of proof can be of critical importance to the conduct of the trial, thereby partaking of certain features of "practice and procedure", each is also, arguably, something more than that because each affects, in a way, the very character of the trial. Each is therefore arguably more than simply a matter of "practice and procedure". This is a chief consideration that ultimately causes me to agree with Gummow J[72] that "[s]ubstantive rights are involved".
[72]Reasons of Gummow J at [33]. See also reasons of Hayne J at [133].
What is the proper way to resolve what I accept to be an ambiguity in the statutory reference to the "usual practice and procedure of the Court"? The resolution is not to be found within the four corners of the section. Nor is it to be discovered in the verbiage of the surrounding sections. Gummow J and Hayne J each look to principles of the common law, consideration of which is required by s 4 of the Crimes Act[73] or otherwise[74]. In my view, the ambiguity is to be resolved with the assistance of larger considerations of legal principle and policy, the guidance afforded to this Court by its recent approach to an analogous question and a consideration of the fact that the Parliament omitted to address the issue that now falls for decision, although it had a perfect opportunity to do so.
[73]Reasons of Gummow J at [32].
[74]Reasons of Hayne J at [134].
In Customs and Excise prosecutions the Customs bears the onus of proving the elements of its case. It is, nonetheless, important to notice the way in which that proof may be effected.
Both the Customs Act and the Excise Act provide that the averment of the prosecutor or plaintiff "contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter or matters averred"[180]. This provision applies to any matter so averred even if evidence in support, or rebuttal, of the matter averred is given by witnesses[181]. Any evidence given by witnesses in support or rebuttal must be considered on its merits and "the credibility and probative value of such evidence shall be neither increased nor diminished" by reason of the section[182].
[180]Customs Act, s 255(1); Excise Act, s 144(1).
[181]Customs Act, s 255(2)(a); Excise Act, s 144(2)(a).
[182]Customs Act, s 255(3); Excise Act, s 144(3).
Although the averment provisions of the Acts do not apply to an averment of the intent of the defendant, or to proceedings for an indictable offence or an offence "directly punishable by imprisonment"[183], they are provisions which can be engaged in many proceedings in which conviction for an offence against the Customs Act or Excise Act is one of the orders sought. Indeed, in the present matter, the whole of the Customs' amended statement of claim was set out beneath the introductory words that pursuant to s 255 of the Customs Act and s 144 of the Excise Act "the plaintiff says and avers and it is the fact that". (Whether reliance on the averment provisions in this way is open to the Customs in this case is a question which was not argued and about which I express no view.) For present purposes, what is important is that although the averment provisions do not place upon the defendant the burden of disproving facts[184], averments of the Customs will suffice to discharge its onus of proving those facts. It will, in every case, be a matter for the judge to say, on the whole of the material, whether the facts are established to the requisite degree of proof. The judge may, but need not, treat what is properly averred as establishing that degree of proof.
[183]Customs Act, s 255(4); Excise Act, s 144(4).
[184]R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507.
Is requiring proof beyond reasonable doubt consistent with these averment provisions? If evidence is given in rebuttal of a fact averred, and that fact is an element of a contravention in respect of which conviction is sought, how is the judge to approach the task of deciding whether the Customs has proved that fact beyond reasonable doubt? How can the judge, in those circumstances, "feel an actual persuasion"[185] of the occurrence or existence of that fact?
[185]Briginshaw (1938) 60 CLR 336 at 361.
That problem is real but it is not avoided if a civil standard of proof is applied. If that were to be held to be the applicable standard of proof, it would follow from Briginshaw v Briginshaw, and like cases in that line of authority, that proof of an issue to the "reasonable satisfaction" of the tribunal of fact "should not be produced by inexact proofs, indefinite testimony, or indirect inferences"[186] and that the tribunal must feel that "actual persuasion" of which Dixon J spoke in Briginshaw[187]. No matter what standard of proof is adopted, the averment provisions may, in certain circumstances, confront a judge with the difficulty of resolving a competition between the requirement of the averment provisions that, as a matter of law, certain facts may, but need not, be taken to have been established to the requisite standard, and evidence tendered in contradiction of that conclusion. No matter what the standard of proof, the judge can resolve that competition in favour of the party making the averment only if persuaded of the existence or occurrence of the fact averred. The averment provisions, therefore, neither suggest nor require departure from the tentative answer expressed earlier in these reasons that if conviction is sought, proof beyond reasonable doubt of the elements of the relevant offence is necessary.
[186]Briginshaw (1938) 60 CLR 336 at 362.
[187](1938) 60 CLR 336 at 361.
The questions about standard of proof should be answered accordingly. Lest there be some misunderstanding about the effect of the answers that are given, it is as well to make explicit that what must be proved beyond reasonable doubt is the elements of the relevant offence. That should not be understood as denying the application of established principles about such matters as proof by circumstantial evidence[188] or as suggesting that every matter alleged in a particular form of pleading must be established to that standard. It is the elements of the offences that must be established.
[188]Shepherd v The Queen (1990) 170 CLR 573.
The Evidence Act
The third and fourth questions asked whether these Customs prosecutions and Excise prosecutions are "criminal proceedings for the purposes of the Queensland Evidence Act". The questions proceed from the premise that it is relevant to ask how the Queensland statute would classify the proceedings. That premise is wrong. The relevant questions are whether, by s 247 of the Customs Act and s 136 of the Excise Act, those provisions of the Evidence Act which operate in criminal proceedings are to be applied in these proceedings.
For the reasons given earlier in connection with the questions about standard of proof, s 247 of the Customs Act and s 136 of the Excise Act require the Supreme Court of Queensland to apply its usual practice and procedure in civil cases in proceedings with the present matters. Those provisions of the Evidence Act which regulate the admissibility of evidence as to facts in issue are provisions regulating the practice and procedure of the courts of Queensland. That being so, those provisions of the Evidence Act that would be applied in a civil case are to be applied in the present proceedings. In particular, the admissibility of documentary evidence as to facts in issue is to be regulated by s 92 of that Act, not s 93. It is not to the point to ask how a classification of proceedings which is adopted in the Queensland statute (as a "criminal proceeding"[189] or as a "proceeding (not being a criminal proceeding)"[190]) might be applied to proceedings of the present kind.
[189]Evidence Act 1977 (Q), s 3.
[190]Evidence Act, s 92(1).
The questions about the Evidence Act should, therefore, each be answered: "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."
Orders
The appeal to this Court should be allowed to the extent necessary to permit the substitution of the answers I propose for the answers which the Court of Appeal ordered to be given. Each party having had a measure of success on the appeal to this Court there should be no order for the costs of the appeal to this Court. In accordance with the terms on which special leave to appeal was granted, the orders for costs made in the courts below should not be disturbed.
Accordingly, I would order:
1. Appeal allowed in part.
2.Set aside pars 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)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)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)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)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.
3.There is no order as to the costs of the appeal in this Court.