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.

" Import " 7 In the Local Court, a good deal of the debate centred around passages from the judgments in Wilson v Chambers and Company Pty Limited (1926) 38 CLR 131. In that case, some 7½ tons of paint was consigned from England to Sydney. However, the ship carrying the paint sailed to Port Kembla. Whilst it was there, a representative of the consignee company agreed to sell the paint to the ship, to be used as ships' stores. The paint was therefore not unloaded, but remained on the ship, which sailed on to Melbourne. An issue arose as to whether, within the meaning of s 68 of the Customs Act (in its then form) the consignee had failed to enter for Customs purposes "goods that [were] imported into Australia", whether for home consumption, or for warehousing, or for transhipment. This turned on whether the paint had been "imported", and the court held that it had been. 8 At 136 Knox CJ said that "goods are imported whenever they are brought into port for the purpose of being discharged there". At 138 – 140 Isaacs J, as he then was, said: "Importation does not necessarily include landing the goods. They may be transhipped direct from the ship in which they arrive into the ship or aircraft into which they are to be transhipped, and still be "imported goods" (secs. 68 and 75(b)) Sec 68 says: "All imported goods shall be entered either (a) for home consumption; or (b) for warehousing; or (c) for transhipment." Consequently "imported goods" as there used is an expression not confined to goods landed or even to goods to be consumed in Australia. On the other hand it does not include all goods in fact arriving by ship in an Australian port. A vessel, say, with a cargo destined for New Zealand may call in at Melbourne or Sydney and may continue her voyage without it being said that the goods it carries are "imported goods" within the meaning of sec. 68. Both these extremes are inconsistent with the working provisions of the Customs Act. In my opinion, having regard to the various sections of the Act – and needless to say the question must be solved by reference to that Act and not to other Acts – the expression " imported goods," in sec. 68, means goods which in fact are brought from abroad into Australian Territory, and in respect of which the carriage is ended or its continuity in some way in fact broken. The underlying concept appears to me to be as follows: Where, within our territory, some act takes place with regard to goods arriving from abroad, whether in fact they are or are not dutiable or prohibited, which in the absence of some new or further arrangement for carrying them away would make the place of arrival their destination and would therefore result in the goods remaining in Australia, then they are "imported goods" and it is the duty of the "owner" to comply with the provisions of sec. 68. I do not think a mere agreement of sale between two merchants in Australia even though the property passes, is sufficient in itself to constitute importation. If such an agreement were made before the ship arrived in Australian waters, it could not possibly operate as an importation. If afterwards the goods arrived and were allowed to remain en route, for instance to New Zealand or in the other direction to India, with the actual carriage undisturbed, I do not see how the position would be altered. But in this case there are additional circumstances. The agreement was made with the shipowner; the delivery was accelerated; not only the property, but the right to possession also, was transferred. The contract of carriage was completely ended, and the shipowner's character in which he held the goods was transformed from that of carrier to that of proprietor. What follows is important vis-à-vis the Customs. The goods were, as it is found, taken into ships' stores and were allowed by arrangement, constituted by permission of the Customs and guarantee to the Customs, to be taken on to Melbourne as ships' stores. That involved the result that, not only was the character of the shipowner's possession altered as between the parties , but the character of the goods themselves was also altered as regards the Crown. What was the legal consequence of all this? In my opinion this catena of circumstances eliminates, as unnecessary formalities, the manual delivery by shipowner to consignee, and redelivery by consignee to shipowner. It also treats for Customs purposes those formal processes as having for convenience been eliminated, but as having in substance taken place and as having had real commercial effects. The goods only became "ships' stores" in Port Kembla, and, in substance, that is where they were, by the catena of circumstances mentioned, treated by all parties, including the Crown, as having been shipped as such. Otherwise, the Customs permission and the guarantee to the Customs rested on no real transaction so far as these goods were concerned. In the result, the goods were "imported goods" and were necessarily "imported" by the Company, and prior in law to their conversion notionally into ships' stores." (Emphasis in the original) 9 At 150 Starke J said: "It cannot, in my opinion, be maintained that the mere act of bringing goods into port constitutes an importation; though unexplained it may be evidence of the fact. If goods, however, are brought into their port of destination for the purpose of being there discharged, the act of importation is complete. On the other hand, the act of importation is not complete if a ship enter some port of call with goods on board which is not the destined port of discharge for those goods. Actual landing is not necessary, as was argued, to constitute an importation for fiscal purposes." 10 These statements have been accepted as authoritative, but of course they need to be read in their context: in the factual circumstances of that case, were the goods in question goods that had been "imported"? In the present case, the defendant is said to have offended against the provisions of s 233 which provides, relevantly, that a person shall not import any prohibited imports, so that the relevant question is whether he imported the goods, it being acknowledged that the goods answered the description of "prohibited imports" by force of the Regulations. 11 What he actually did was that, whilst in East Timor, he placed an order over the Internet, asking an entity in New York to post the goods to him, at an address in Australia, it having been arranged in advance that, upon any postal item being sent to him at that address, it would be immediately forwarded on to him in East Timor by the Defence Force Post Office system, without his having to or even being in a position to do anything about it. The evidence does not establish that he knew anything of the mechanics of that step, for the forwarding on of the goods in question, such as whether they would be taken from, say, Sydney airport to some postal facility, before being forwarded on. In the case of the first and second consignments, the arrangement apparently would have been effected, but for the seizure of the goods; and in the case of the third consignment, the arrangement went astray without, it seems, anything intended by him, or in respect of which he was in any relevant way at fault. 12 The parties referred me to other cases, each of which related to a somewhat different point to the one now in question, and the authorities do not seem to me to really assist in the resolution of the problem. I conclude that it may be said that the goods were "imported goods" for some purposes. See the statement by Isaacs J at 139: "The underlying concept appears to me to be as follows: Where, within our territory, some act takes place with regard to goods arriving from abroad, whether in fact they are or are not dutiable or prohibited, which in the absence of some new or further arrangement for carrying them away would make the place of arrival their destination and would therefore result in the goods remaining in Australia, then they are "imported goods" and it is the duty of the "owner" to comply with the provisions of sec. 68."

But there is a different question involved as to whether the defendant imported those goods, within the meaning of s 233(1)(b). He took steps which had the practical effect that the goods were posted from New York to Australia, and would then have been posted on to him in East Timor. One can say that, but for the arrangement he made for the posting on of the goods, the place of arrival (Sydney) would have been the destination of the goods. From the perspective of the carrier who carried the goods from New York to Sydney, Sydney was the destination, but from the defendant's perspective, matters were different. So far as he was concerned, the destination was East Timor, and their being forwarded on to him there was simply an incident in the overall carriage. The position, it was argued, was somewhat akin to situations discussed in earlier cases, such as Wilson , for example goods in a vessel proceeding from England to New Zealand via Australia, where the goods were not unloaded whilst in any Australian port, or goods in a vessel passing through Australian waters. 13 In the course of debate, there was discussion about a man flying from, say, country A to Australia, changing aircraft, and then flying on to country B. Does that person "import" goods in his possession into Australia if he merely waits in a transit lounge, between flights? Would it make a difference if the flights into and out of Australia were with different airlines? Would it make a difference if he had to stay over night in Australia, before flying out? Would it be significant if the overall journey was arranged by one contract of carriage, or by separate contracts of carriage? The defendant referred to some events concerning a man named Taillon, who was charged with an offence under, I understand, s 233B(1)(b), ie importing narcotic goods into Australia. It was said that the then Attorney General publicly withdrew the charge, and allowed Taillon to leave Australia, and that s 233B(1)(aa) was then enacted to remedy a perceived lacuna in law: it became an offence, not just to import narcotic goods into Australia, but also to bring narcotic goods into Australia, without reasonable cause. 14 I find this argument persuasive, given the uncertainty of the matter otherwise: comparing ss 233 and 233B, the former prohibits a person from importing prohibited imports, whereas the latter now prohibits a person from prohibiting imported narcotic goods, and also from bringing prohibited narcotic goods into Australia. If it was necessary to enact s 233B(1)(aa), it was to cure this perceived deficiency in the law. 15 The defendant also took comfort from the statement of Dawson J in R v He Kaw Teh (1985) 15 A Crim R 203 at 256:- "To import goods is to bring them into the country from abroad: Lyons v Smart (1908) 6 CLR 143 at 150. But if the goods are merely passing through en route to some place outside the country, they are not imported. Thus in Bull (1974) 131 CLR 203 it was held that goods are not imported into Australia within the meaning of s 344B(1)(b) of the Customs Act until they are landed or brought within the limits of a port with the intention of landing or discharging them." 16 This statement was, I think, not part of the reasoning essential to his Honour's decision, but it does support the defendant's case. I find that the defendant did not "import" the goods. However, even if what he did amounted to importing them, I find that the plaintiff did not prove that he had the intention to do so.

Intention 17 In his written submissions in this Court the defendant contended, as he had in the Local Court, that he lacked a guilty intention, in relation to the quality of the goods, but in oral address in this Court, the submission was extended to embrace the proposition that the defendant lacked the necessary intention to import the goods. I consider that this is correct. The defendant intended that the goods simply pass through Australia, without any further action on his part. He asked Mass Quantity to address the goods to him at the AFPO address, as being the way to have the goods sent from New York to East Timor. 18 The evidence, uncontradicted and mostly unchallenged, was that he was conscious of a distinction between goods which it would be lawful for him to deal with, and goods which it would be unlawful for him to deal with. He appears to have assumed that Australian law was applicable, although he also spoke of seeing the products in question readily available for sale to anyone in health food stores and supermarkets in Hawaii. Her Worship accepted his evidence and said that, if she had had to decide the matter on this basis, she would have dismissed the informations, and she referred to Teh. 19 The plaintiff now contends that this was an error, and that the defendant merely made what amounts to an error of law. The plaintiff says that the defendant knew the names by which the various goods in question were sold, and that the legal fact is that by force of the Regulations those goods are prohibited imports, so that the defendant's mistake was one of law rather than of fact. 20 However, the question seems to me to be more fundamental, namely whether the defendant had a guilty mind, in the relevant sense, and I take the law to be as stated by Mason CJ, Deane and Dawson JJ in R v Kural (1987) 29 A Crim R 12 at 13:- "Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug." 21 Here, the defendant was stationed in East Timor. He looked with what seems to have been considerable care given his circumstances, at the question whether what he proposed to do was lawful, and for what appear to have been sound reasons, concluded that it was: the documentary material that he collected, and which was in evidence in the Local Court, included a positive statement by Mass Quantity that the goods he ordered were lawfully available, that they were a realistic alternative to anabolic steroids, and that an earlier formulation for one of the substances had been changed in consequence of it being found to have included an ingredient that was "technically a drug". That is, he held an honest and reasonable belief in the existence of circumstances which, if true, made his conduct innocent: Maher v Musson (1934) 52 CLR 100 at 104. 22 The learned Magistrate accepted the defendant's evidence, and concluded that he lacked a guilty mind. This was a question of fact for her. In any event, on the material before me, I do not think she erred. 23 The appeal should be dismissed.

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