Wilson v Chambers & Co Pty Ltd
38 CLR 1311926 - 0608A - HCA
(Judgment by: Knox CJ)
Between: Wilson
And: Chambers & Co Pty Ltd
Judges:
Knox CJIsaacs J
Higgins J
Rich J
Starke J
Subject References:
TAXATION AND REVENUE
Customs duties
Failure to pay duty
Intention to defraud revenue
Legislative References:
Customs Act 1901 (Cth) No 6 - The Act
Judgment date: 8 June 1926
Melbourne
Judgment by:
Knox CJ
These were appeals from determinations of a Stipendiary Magistrate dismissing a number of informations for alleged offences against the Customs Act 1901-1920.
The respondent Company was charged with offences against s. 33, s. 68 and s. 234, and the respondents William Chambers and Lawrence Chambers were charged with offences against s. 236 of that Act.
The relevant facts on which these charges were founded were, so far as disclosed by the evidence, as follows, namely:The Company was the consignee of 7 tons of paint shipped on board the Steamship Nauru Chief in England and consigned to Sydney. The ship went from England to Nauru, and thence to Port Kembla, omitting to call at Sydney. She arrived at Port Kembla on 6th or 7th of September 1922 and remained there for thirteen hours for the purpose of bunkering. The respondent Lawrence Chambers and one Vogil, an employee of the shipowners, the British Phosphate Commission, went to Port Kembla to meet the ship, and Chambers told Vogil that there was paint on board the ship for him and he was going to land it there. Port Kembla is a proclaimed port and a Customs officer is in attendance there. Lawrence Chambers had been engaged by the Phosphate Commission to clear the ship on its behalf. While the ship was lying at Port Kembla he arranged with the captain and chief officer of the ship to buy the whole of the paint on the terms that it was to remain on the ship to be used as required and to be paid for as used. The ship left Port Kembla with the paint, some of which was afterwards used in Melbourne in painting the ship. The paint was dutiable under the Customs Tariff, but no duty was paid on it nor was any entry made in respect of it.
On these facts the respondent Company was charged with the following offences, namely, (1) failing to enter the goods (s. 68); (2) evading payment of duty (s. 234); (3) interfering with goods which were subject to the control of the Customs (s. 33). The respondents Lawrence Chambers and William Chambers were charged with aiding, abetting or being concerned in the commission of the offences alleged to have been committed (s. 236). All the offences charged were alleged to have been committed with intent to defraud the revenue.
On the hearing of the informations no evidence was called for the respondents and the Magistrate dismissed all the informations, being of opinion that the evidence given for the prosecution failed to support, and in fact disproved, the averments of the informant. The question for us is whether his determination was erroneous in law. The charges against respondent William Chambers are not now pressed, and the case may be dealt with as if the charges were against the Company and Lawrence Chambers alone.
In my opinion the evidence given for the prosecution was sufficient to establish the charge of failing to enter the goods. Section 68 of the Act provides that all imported goods shall be entered either for home consumption or for warehousing or for transhipment. The only question is whether these goods were "imported," within the meaning of that section. According to the bill of lading the goods were consigned to the Company at Sydney. The evidence shows that Lawrence Chambers on behalf of the Company was willing and intended to have the goods landed at Port Kembla and to take delivery of them there. The ship actually came into the port and remained there for some hours, and the only reason alleged why the goods were not landed there was that Lawrence Chambers agreed while the ship was in the port to sell them to the owner of the ship. Presumably on this agreement being made the bill of lading was held by Lawrence Chambers as the person authorized by the shipowners to act for them in clearing the ship. The Act contains no definition of the meaning of the word "imported" but I think Mr. Mitchell was right in the view he put forward that goods are imported whenever they are brought into port for the purpose of being discharged there. So far as the ship is concerned the goods have at that time arrived at their destination, and their character as goods imported into Australia cannot, I think, be affected by an agreement subsequently made under which they are not in fact landed at the port at which the ship arrived. In the circumstances of this case I think it is clear that the paint in question was imported when the ship arrived in Port Kembla and that the obligation to make an entry arose at that time.
The second charge was that of evading payment of duty (s. 234). The distinction in meaning between the words "evade" and "avoid" is well established, and a charge of evading payment is not made out by evidence which proves no more than that the person charged failed or omitted to pay an amount payable by him. There was nothing to suggest that the agreement to sell the paint to the ship was other than a genuine agreement, nor did the evidence tend to show that the respondents did not honestly believe that in the circumstances it was not necessary to enter the goods or to pay duty in respect of them, or that their intention in selling the goods was to escape payment of duty. In fact the evidence proved no more than an omission to pay duty which was legally payable. In my opinion the Magistrate was right in dismissing the informations founded on s. 234.
With regard to the charge of interfering with goods which were under the control of the Customs, I think the Magistrate's decision was right. Section 33 of the Act provides that no goods subject to the control of the Customs shall be moved, altered or interfered with without authority. There was clearly no evidence that the goods in question were moved or altered, but it is said that the agreement made by Lawrence Chambers to sell them to the ship constituted an interference within the meaning of the section. I am unable to accept this contention. I think the expression "interfered with" in the context in which it is found should be construed as connoting some physical dealing with the goods, something in the nature of a movement of the goods or an alteration of their character.
For these reasons I am of the opinion that the Magistrate's determination on the information against the Company and Lawrence Chambers founded on s. 68 of the Act-failure to enter the goods-was erroneous, but that his determinations on the other informations were correct.