Comptroller-General of Customs v Inchcape Shipping Services Pty Ltd [2019] QDC 181

DISTRICT COURT OF QUEENSLAND CITATION: Comptroller-General of Customs v Inchcape Shipping Services Pty Ltd [2019] QDC 181 PARTIES: COMPTROLLER-GENERAL OF CUSTOMS (Appellant) v INCHCAPE SHIPPING SERVICES PTY LTD (Respondent) FILE NO/S: 3509/18 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 25 September 2019 DELIVERED AT: Brisbane HEARING DATE: 26 July 2019 Final written submissions: 16 September 2019 JUDGE: Koppenol DCJ ORDER: 1. Appeal dismissed. 2. I will hear the parties as to costs. CATCHWORDS: PRINCIPAL AND AGENT – ACCESSORIAL LIABILITY – “IN ANY WAY, DIRECTLY OR INDIRECTLY CONCERNED IN COMMISSION OF AN OFFENCE” - whether offence committed by principal – whether agent could be convicted if offence by principal not established INTENTIONALLY OR RECKLESSLY COMMITTED AN OFFENCE – ACCESSORIAL LIABILITY – whether applicable to Customs Act prosecution against agent MISTAKE OF FACT – DEFENCE – whether applicable to alleged principal offender Customs Act 1901 (Cth) ss 64ACA, 64ACD(2) & (3), 236, 244 Corporations Act 2001 (Cth) s 1324(1) Criminal Code (Cth) ss 9.2, 13.3(3) Cody v J H Nelson Pty Ltd (1947) 74 CLR 629, applied Giorgianni v The Queen (1985) 156 CLR 473, applied Thornton v Mitchell [1940] 1 All ER 339, followed -- 1 of 4 -- 2 COUNSEL: K Mellifont QC and M Nicolson for the Appellant R O’Gorman and D M Caruana for the Respondent SOLICITORS: QC Law and AGS for the appellant Thynne + MacCartney Lawyers for the respondent Background [1] The master of an incoming ship is required to make a report to Customs about the impending arrival of the vessel, crew and passengers: Customs Act 1901 (Cth), section 64ACA. The report must be submitted at least 96 hours before the estimated arrival time. [2] Here, the master timeously engaged the respondent (a shipping agent) to submit the reports within the requisite 96-hour period, but the respondent failed to submit the reports by the due time. [3] It is an offence of strict liability if an operator (master) of a ship fails to timeously submit the reports: section 64ACD(2) & (3). [4] An accessory can also liable under section 236: “236 Aiders and abettors For the purposes of a Customs prosecution (within the meaning of section 244), whoever aids abets counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly.” [5] The respondent was charged, in the Magistrates Court, as an accessory to a number of non-reporting offences. The appellant prosecutor relied on the second limb of section 236, namely that the respondent was “by an act or omission, directly or indirectly concerned in the commission of an offence against the Customs Act 1901, namely, aid and abet [the ship captain] to fail to report that” [a named person], a passenger, was expected to be on board an arriving ship, contrary to section 64ACD. [6] The magistrate dismissed the charges, holding that the appellant prosecutor had not proven that the respondent either intended to commit, or recklessly committed, the offences. The Appeal [7] The appellant submitted in this Court that intention or recklessness were not required to be proven, given that the charges were based upon the second (not the first) limb of section 236. [8] The magistrate based his decision upon his understanding of the High Court’s decision in Giorgianni v The Queen (1985) 156 CLR 473. However, Giorgianni concerned the equivalent of the first limb of section 236 only—namely, aiding, abetting, counselling or procuring the commission of an offence and whether intention or recklessness were required to be proven in those circumstances. [9] Counsel for the respondent relied upon Giorgianni and submitted that intention was implied in the second limb of section 236 because (a) any form of accessorial liability requires proof of intention or recklessness, and (b) the ejusdem generis principle of statutory interpretation necessarily imports into the second limb of section 236 the -- 2 of 4 -- 3 necessity for the same proof of intention or recklessness as is required under the first limb. [10] That submission should be rejected. [11] First, there are no statements in the judgments in Giorgianni which mandate the necessity for proof of intention or recklessness for all forms of accessorial liability. That case concerned one type of accessorial liability only—namely, the equivalent of the first limb of section 236, and there was no discussion in Giorgianni about any statutory wording of the type used in the second limb of section 236. Secondly, the reliance upon the ejusdem generis principle of statutory construction to determine the meaning of the second limb of section 236, when (as here) that meaning is already demonstrably clear and unequivocal because of the statutory wording used, is inappropriate: see Cody v J H Nelson Pty Ltd (1947) 74 CLR 629, per Dixon J (as he then was) at 642. The second limb of section 236 extends significantly the types of accessorial acts or omissions which are the subject of section 236, and there is no hint or suggestion in the wording used which could support a principled conclusion that intention or recklessness are also a precondition of their applicability. By way of contrast, section 1324(1) of the Corporations Act 2001 (Cth) does extend accessorial liability beyond those persons engaged in conduct which would constitute “aiding, abetting, counselling or procuring” to those “being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act” [emphasis added]. In that section, Parliament included the additional requirement of knowledge. If Parliament had wanted the accessorial equivalent in the Customs Act to have had the additional requirement of intention, it could easily have included the adverb “intentionally”—which it did not. [12] Counsel for the respondent also drew attention to the inclusion of the words “aid and abet” in the wording of the formal charge. However, as the appellant submitted, the particulars of the alleged liability for the charge were based upon the second limb, which each party clearly understood. The point was not raised below, but if it had been raised, the formal complaint could have been amended by simply deleting those words. [13] However, the final point which was raised by the respondent in this Court does have merit. [14] The respondent submitted that it could not be liable as an accessory unless an offence by the principal (the master of the ship) had been committed. It will be recalled that the charge against the respondent read that it was by an act or omission, directly or indirectly concerned in the commission of an offence against the Customs Act. [15] It was argued that under section 9.2 of the Criminal Code (Cth), the master of the ship had the defence of mistake of fact. That section provides that a person is not criminally responsible for an offence that has a physical element for which there is no fault element if (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts, and (b) had those facts existed, the conduct would not have constituted an offence. [16] Here, the master of the ship timeously engaged the respondent shipping agent to submit the impending arrival reports. It may be supposed for present purposes that the master mistakenly but reasonably believed that the shipping agent would submit the reports to Customs during the 96-hour pre-arrival period. -- 3 of 4 -- 4 [17] The appellant submitted that the onus was on the respondent, if it wished to deny criminal responsibility, to discharge the initial evidential burden, pursuant to section 13.3(3) of the Criminal Code. That submission would undoubtedly be correct if the defendant had been the master of the ship. But the relevant defendant in the Magistrates Court was the respondent—and the respondent could be liable as an accessory only if the principal (the master of the ship) had committed an offence. [18] Perhaps the seminal case which illustrates that point is Thornton v Mitchell [1940] 1 All ER 339 (KB). There, a bus conductor signalled to the driver that it was all clear for the bus to reverse. The driver then reversed the bus but killed two pedestrians in the process. The lower court acquitted the driver of being a principal in driving without due care (presumably because of the defence of mistake of fact) but convicted the conductor as an accessory of unlawfully aiding, abetting, counselling and procuring the driver to do and commit the offence of driving without due care and attention. On appeal, the Divisional Court (Lord Hewart LCJ, Humphreys and Hilbery JJ) acquitted the conductor because there was no principal offence (for driving without due care) that he had aided and abetted. [19] Thornton v Mitchell was referred to with approval by Mason J (as he then was) in Giorgianni at 491. His Honour said (citing Thornton v Mitchell) that: [emphasis added] “It is essential to conviction on the basis of secondary participation, however, both (a) that the person charged aids, abets, counsels or procures the commission of the misdemeanour and (b) that the misdemeanour is actually committed.” [20] The appellant responded to that approach by raising a “floodgates” argument. In paragraph 50 of its submissions in reply, it said: “If it applied in the way the respondent submits then there must be an acquittal in every case where the operator [master of the ship] says that they provided the forms to the agent to lodge, under an ongoing arrangement, and the agent failed to lodge the forms in time for whatever reason, good or bad.” [21] That argument misses the point. Under the relevant wording of the Customs Act, the master of the ship may have a mistake of fact defence. If so, “an offence against the Customs Act” may not have been committed and a shipping agent (like the respondent) may not be liable as an accessory. That is something which should have been investigated as part of the pre-prosecution procedures. The relevant documentary and other evidence may or may not have supported a defence on the part of the master of the ship. Of course, if it is thought that the Act should be amended to impose some kind of liability upon the shipping agent in circumstances such as the present, doubtless Parliament could do so, if it were so disposed. Conclusion [22] Although the magistrate’s reasons for dismissing the charges were erroneous, this appeal will be dismissed because the respondent has established that the appellant prosecutor could not have satisfied the magistrate that (a) the principal (the master of the ship) had committed an offence against the Customs Act, and consequently (b) that the respondent could be guilty of the alleged accessorial liability under section 236. Orders [23] The appeal is dismissed. I will hear the parties as to costs. -- 4 of 4 --