Chief Executive Officer of Customs v Piatscheck [2011] QMC 15

MAGISTRATES COURTS OF QUEENSLAND CITATION: Chief Executive Officer of Customs v Piatscheck [2011] QMC 15 PARTIES: CHIEF EXECUTIVE OFFICER OF CUSTOMS (complainant) v LARRY MATTHEW PIATSCHECK (defendant) FILE NO/S: MAG148228/10(8) DIVISION: Magistrates Courts PROCEEDING: Complaint ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 17 June 2011 DELIVERED AT: Brisbane HEARING DATE: 1 June 2011 MAGISTRATE: Lee G ORDER: That the defendant imported prohibited imports within the meaning of section 233(1)(b) Customs Act 1901 (Cth) CATCHWORDS: CRIMINAL LAW – COMMONWEALTH OFFENCES – Interpretation – meaning of “import” in section 233(1)(b) Customs Act 1901 – images on a lap top computer prior to leaving Australia - whether constitutes an import upon return – whether the item must have been obtained from abroad Criminal Code (Cth), s 3.1, s 3.2, s 4.1, s 4.2, s 5.1 to s 5.6, s 6.1, s 9.2 Customs Act 1901 (Cth), s 5AA, s 49A, s 50, s 51, s 68, s 112, s 233(1)(b) Customs (Prohibited Imports) Regulations 1956, r 4A Customs (Prohibited Exports) Regulations 1958, r 3 -- 1 of 14 -- 2 Justices Act 1886 (Qld), s 48 Brown v United States, 16 F.2d 682 (1926), cited He Kaw Teh v R, (1985) 157 CLR 523; [1985] HCA 43, cited R v Bull (1974) 131 CLR 203, applied R v Campbell (2008) 73 NSWLR 272; [2008] NSWCCA 214, applied R v Handlen & Paddison [2010] QCA 371, considered R v Mohammadi [2006] QCA 530, considered R v Toe (2008) 106 SASR 203; [2010] SASC 39, applied Stark v Plant [2010] WASCA 74, cited US v Cabaccang, [2003] USCA9 347; 332 F.3d 622 (2003), cited Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131, applied COUNSEL: M Hansen for the complainant A Edwards for the defendant SOLICITORS: Australian Government Solicitor for the complainant Ryan and Bosscher Lawyers for the defendant [1] The defendant is charged with an offence under section 233(1)(b) Customs Act 1901 (Cth) (the Act) as follows: On 4 May 2010 at Brisbane in the State of Queensland, Larry Matthew Piatscheck did, contrary to section 233 (1) (b) of the Customs Act 1901 (the “Customs Act”) and Regulation 4A of the Customs (Prohibited Imports) Regulations 1956 (the “Regulations”), as amended, import a prohibited import without permission namely a laptop computer containing files that depict matters of sex to the extent that they should not be imported namely sexual acts between a human and an animal. (my emphasis) [2] The sole issue for determination is a question of law namely whether the actions of the defendant constitute an “import”. No evidence was called and the matter proceeded on the basis of formal admissions (exhibit 1). [3] The factual background can be gleaned from the formal admissions and the particulars of the charge in the complaint. The defendant left Australia on 10 January 2010 and -- 2 of 14 -- 3 returned to Australia on 4 May 2010. He had possession of his laptop computer on departure and upon return. Prior to his departure on or about 12 October 2009 the images the subject of this charge were created and filed on his laptop computer. The images remained on his laptop when he left Australia and upon his return to Australia. There were 86 images and 113 videos of a sexual nature between adult human beings and animals a number of which were accessed by the defendant while overseas. [4] The issue for determination is whether this constitutes an “import” as that term is used in section 233(1)(b), namely, whether images that were created and filed on the defendant’s laptop before he left Australia in the first place constitutes an “import” upon his return to Australia or whether the images on his lap top must have originated from “abroad” in order to constitute an “import” upon his return to Australia. [5] Section 233(1) of the Act relevantly provides1: 233 Smuggling and unlawful importation and exportation (1) A person shall not: (a) smuggle any goods; or (b) import any prohibited imports; or (c) export any prohibited exports; or (d) unlawfully convey or have in his or her possession any smuggled goods or prohibited imports or prohibited exports. (1AA) A person who contravenes subsection (1) is guilty of an offence punishable upon conviction: (a) in the case of an offence against paragraph (1)(a) or an offence against paragraph (1)(d) in relation to smuggled goods—as provided by subsection 233AB(1); or (b) in any other case—as provided by subsection 233AB(2). (1AB) Subsection (1AA) is an offence of strict liability, to the extent that it relates to paragraphs (1) (b), (c) and (d)……… Note: For strict liability, see section 6.1 of the Criminal Code. [6] Certain provisions in Chapter 2 of the Criminal Code (Cth)2 (“the Code”) apply to offences against the Act3: section 5AA of the Act. The code generally provides that there 1 Section 233(AB)(2) provides a maximum penalty - the greater of 1000 penalty units or three times the value of the goods if that can be determined by the court; 2 Schedule to the Criminal Code Act 1995 (Cth); -- 3 of 14 -- 4 are physical elements and fault elements for offences under Commonwealth law which must be proved in order to found a verdict of guilt for an offence: sections 3.1 & 3.2. Only conduct that is voluntary, that is, the product of the will of the person, constitutes a physical element of an offence: section 4.1 & 4.2. Fault elements generally encompass “intention”, “knowledge”, recklessness” and “negligence”: sections 5.1 to 5.6. For an offence of strict liability such as one under section 233(1)(b) of the Act there are no fault elements for any physical elements of that offence: section 6.1(1)(a) of the Code4. For example, the prosecution is not required to prove “intention” in respect of the physical element “import”, or for that matter, “export” for an offence under section 233(1)(c). Although, to constitute a physical element in this case, “import” has to be a voluntary act. Also, a defence of mistake of fact under section 9.2 of the Code is available5: section 6.1(1)(b). [7] By the combined effect of sections 50 & 51 of the Act, regulation 4A(1A)(a) of the Customs (Prohibited Imports) Regulations 1956 (Cth) provides a description of publications and goods that are “prohibited imports” as that term is used in section 233(1)(b) of the Act. It is not contentious that the computer generated images on the defendant’s lap top fall within the description of “prohibited imports” in they offend “against the standards of morality, decency and propriety generally accepted by reasonable adults...”: regulation 4A(1A)(a). Indeed, such images would be regarded as “prohibited imports” regardless of their location and whether or not they have been imported into Australia: see R v Bull (1974) 131 CLR 2036. I note also, they would be “prohibited exports” within the meaning of regulation 3 of the Customs (Prohibited Exports) Regulations 1958 (Cth) in almost identical terms7. [8] Unlike the Code8, there is no definition of “import” or derivative thereof in the Act. Nor is there any definition of “export” in the Act for that matter9 despite there being a definition of “smuggling”10 in section 4 of the Act, incorporating among other things, “importation” and “exportation” in that definition. It is common ground though that the Criminal Code definitions cannot by themselves assist in determining the meaning of “import” in section 233(1)(b) of the Act. If the Code definition applied to the present case 3 Part 2.1 (Purpose and Application), Part 2.2 (Elements of an offence) & Part 2.3 (Circumstances in which there is no criminal responsibility); 4 Subsection 233(1AB) and Note was inserted into section 233 by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (No 24 of 2001), Schedule 21(94), with effect from 15 December 2001; 5 For a recent example on the application of section 9.2 of the Code to an offence under section 233(1)(b) of the Act, see Lovelock v “T” [2010] NTMC 004, per Blockland CM, and cases cited therein; 6 McTiernan, Menzies, Gibbs, Stephen & Mason JJ; Barwick CJ dissenting on this point; see for example Menzies J at 249 (point 6) and Stephen J at 267 (point 7); 7 Regulations made pursuant to section 112 of the Customs Act 1901; 8 The inclusive definition of “import” is in section 300.2 in Chapter 9 (Dangers to the Community) Part 9.1 (Serious Drug Offences) of the Criminal Code no doubt for “import/export offences” in Division 307 thereof – “import, in relation to a substance, means import the substance into Australia and includes: (a) bring the substance into Australia; and (b) deal with the substance in connection with its importation.” 9 Section 300.2 of the Criminal Code defines export – “export includes take from Australia.” 10 The derivative “smuggle” is an offence under section 233(1)(a) of the Act; -- 4 of 14 -- 5 however, I would have concluded that the defendant imported the images on his laptop into Australia by bringing them into Australia: paragraph (a) of the Code definition. There is nothing in that definition or section 233(1)(b) of the Act to constrain its operation by reference to either the origin of the publications or goods concerned, or a requirement of commerciality of some description. Given the dearth of conclusive authority on this issue and submissions made in this case, legislative amendment may be considered appropriate to include a definition of “import” in the Act. [9] In the absence of a statutory definition of “import” or derivative, the appropriate course is to ascertain its natural or ordinary meaning from other sources bearing in mind that its meaning must also be ascertained by having regard to the context in which it appears in the Act11. [10] The leading authority on what constitutes an import is R v Bull (1974) 131 CLR 203 which was, in the context of the present case, considered by the Queensland Court of Appeal in R v Mohammadi [2006] QCA 53012. Both cases involved charges under now repealed section 233B of the Act (Special provisions with respect to narcotic goods)13, including importing commercial quantities of narcotic substances14 into Australia which were incorporated into Part 9.1 (Serious Drug Offences) of the Code, for example section 307.1 and section 307.2 relating to importation of commercial and marketable quantities of “border controlled drugs” respectively. Counsel in this case informed that there were no other authorities directly on point although other authorities decided after Mohammadi were cited in submissions for analyses of the meaning of “import” or derivative in repealed section 233B of the Act or provisions of the Code: see R v Campbell (2008) 73 NSWLR 272; [2008] NSWCCA 214 and R v Toe [2010] SASC 39 both of which were applied in R v Handlen & Paddison [2010] QCA 37115. Although the central question to be decided in those cases was not the focus of the question in this case, I will refer to these before considering Mohammadi as they, like Mohammadi, contain statements of principle as to what constitutes an “import” endorsing Bull and Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131. They will be considered in this context. [11] Unlike the present case, in Bull, the imported goods did not originate from within Australia. There was no consideration of the specific question to be determined in this case. A quantity of cannabis was loaded onto a vessel in Bali. The vessel then sailed towards Australia until intercepted within the three mile territorial limit off the coast of the Northern Territory after the vessel’s crew had jettisoned drugs into the sea. The drugs were retrieved by customs officers. One question in Bull was whether the goods were imported at the time of interception. By majority16, it was concluded that the goods had 11 See for example R v Campbell (2008) 73 NSWLR 272 per Spigelman CJ citing at [48] Lord Hoffman in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 to that effect; 12 De Jersey CJ., McMurdo P. & Chesterman J (as he then was); 13 Repealed by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Act No 129 of 2005), Schedule 1 (61) with effect from 6 December 2005; 14 Defined in repealed Schedule VI of the Customs Act 1901 which has largely been incorporated in the definition of “border controlled drugs” in Part 9.1 of the Code in section 314.4 by Act No 129 of 2005; 15 Holmes, Fraser & White JJA; 16 Barwick CJ, Menzies, Gibbs, Stephen & Mason JJ; McTiernan J dissenting on this point; -- 5 of 14 -- 6 not been imported at that time accepting statements of principle expressed in Wilson v Chambers which will be cited later in these reasons. Convictions on the importation charges were set aside. [12] Thus, the focus in Bull was when the “import” began. This is contrasted with R v Campbell (2008) 73 NSWLR 272; [2008] NSWCCA 214 where the focus of inquiry was when the “import” ended. Like Bull, and unlike the present case, the imported goods came from Indonesia and did not originate from within Australia. In Campbell it was necessary for the prosecution to prove that the fault element i.e. intention, existed at the time the physical element “import” occurred. For the Code offence there under consideration, it was found that “imports” focused on a physical act or a more finite activity which formed part of a broader concept of “importation” connoting a process or a venture17. The terms “imports” and “importation” are not synonymous. Although Campbell was dealing with an offence under the Code, after considering a range of authorities, the court found the reasoning in Bull which adopted the reasoning of Isaacs J in Wilson v Chambers to be “more closely applicable than any other case law”18 to the effect that “imports” requires the imported goods “to arrive in Australia from abroad” and to be delivered at a point which, in the words of Isaacs J in Wilson v. Chambers, would “result in the goods remaining in Australia”.19 That was despite the fact that Bull and Wilson v Chambers were repealed section 233B Customs Act 1901 cases. The focus of inquiry in Wilson v Chambers was also when the “import” ended where goods arrived in an Australian port for intended delivery there but while in port an arrangement was made where the goods were not landed but used on the ship. It was held that the goods were imported at the port for the purposes of the Act even though they were not in fact landed there. [13] In Campbell the physical element of “imports” was completed after delivery of the packages to the defendant’s premises but before it was unpacked. The court found that it was impermissible to convict the defendant on the basis that she formed an intention (the fault element) after the physical element had been completed. I do not think it necessary to outline the complex facts of Campbell for present purposes. [14] Although the principle issue in R v. Toe (2010) SASR 203; [2010] SASC 39 was whether on the evidence the defendant imported marketable quantities of “border controlled drugs” pursuant to charges under section 307.2 of the Code20, similar issues were 17 At [87] & [88], Spigelman CJ in R v Campbell said “that the word “importation” in the statute must be understood as extending before and after the scope of the word “imports”. He referred to Forbes v. Traders‟ Finance Corporation Ltd (1971) 126 CLR 429 as the origin of this line of authority; 18 R v Campbell (2008) 73 NSWLR 272 at 294 per Spigelman CJ (para 125) & at 295 per Weinberg AJA (para 139); 19 R v Campbell, at 294 (para 128) per Spigelman CJ; 20 At 4 (para 17) per Bleby J.; -- 6 of 14 -- 7 discussed by the Court of Appeal in South Australia in accepting by majority the analysis in Campbell as compelling in applying a narrow construction of “import”21. Again, unlike the present case, in Toe the goods (drugs) alleged to have been imported did not originate from Australia but from India and Brazil. [15] Campbell and Toe were considered in R v Handlen & Paddison [2010] QCA 37122 in which the defendants were convicted, relevantly, of a charge pursuant to section 307.1 of the Code of importing “border controlled drugs” secreted in cathode ray tubes in computer monitors in two shipments from Canada to Australia. Again, unlike the present case, the imported goods did not originate from within Australia. [16] The focus of inquiry in Bull, Campbell, Toe, and Handlen and Paddison was not directed to the question to be decided in this case. Rather, the parties relied on various statements of principle in them on the meaning of “import”. One example of note is, in Campbell where Spigelman CJ at [124] among other things said: The respective provisions of Div 307 of Pt 9.1 of the Code, including relevantly s 307.11, each use the formula that a person commits an offence if “the person imports or exports a substance ….This formulation appears to equate the concept of “imports” with “exports”. It focuses attention on crossing the national border, rather that upon arrival at a destination. The concept of exporting is clearly not concerned with arrival at a foreign destination in any manner. This is the textual indicator which tends to support the appellant‟s case that what the legislature has rendered criminal is the act of arrival in Australia, without subsequent deployment. (my emphasis) [17] Holmes JA (with whom the other members of the Court of Appeal agreed) in Handlen & Paddison cited this with approval at [46] where she said: In R v Campbell, Spigelman CJ, with whose reasons the other members of the New South Wales Court of Criminal Appeal agreed, considered the meaning of the word “imports” as used in s 307.11 of the Code. That section concerns precursor substances rather that drugs, but his reasoning is equally applicable to s 307.1. Section 307.11 made it an offence to import or export (as does s 307.1), suggesting an equation between two concepts. That focussed attention, Spigelman CJ said, on “crossing the national border, rather than upon arrival at a destination”, indicating, “that what the legislature has rendered criminal is the act of arrival in Australia, without regard to subsequent deployment”. (my emphasis) 21 At 15 (para 52) per Bleby J.; at 66 (para 220) per White J.; 22 Judgement delivered 23 December 2010; -- 7 of 14 -- 8 [18] And, after noting the acceptance by the majority in Toe of the analysis of Spigelman CJ in Campbell, Holmes JA at [47] & [69] in Handlen and Paddison, citing Bleby J at [77] in Toe also approved of what she described as the narrow concept of “import” where she said: The ordinary and natural meaning of “import” which Bleby J adopted was, he said, “the doing of an act or acts which constituted the bringing or arranging or procuring of the bringing of the border controlled drugs into Australia”. [19] Bleby J in Toe also referred to other authorities in support of his conclusion23. In Bell v The Queen (1983) 8 CCC (3rd) 97, which he described as a leading Canadian case, the majority of the Supreme Court of Canada was of the opinion that “import” “is simply to bring into the country or to cause to be brought into the country”24. He noted that by unanimous decision the Court of Appeal in New Zealand in R v Hancox [1989] 3 NZLR 60 came to a similar view25. [20] While the Australian cases above were concerned with either repealed section 233B of the Act or Code offences and not an offence under section 233(1)(b) of the Act, the complainant in this case raises this very point i.e. the meaning of “import” must be ascertained by reference to the context in which that word is used in the legislative scheme of the Act. It must be remembered that Spigelman CJ and Weinberg AJA in Campbell considered repealed section 233B authorities to be most apposite in determining meaning of “import” for the Code offence that was before them26. In like fashion, in my view such authorities are apposite on the current question in respect of a charge under section 233(1)(b). The gravamen of “import” is focussed on crossing the border into Australia without being concerned with the origin of the “prohibited goods” or what is intended to do with them. In similar vein, “export” is concerned with crossing the border out of Australia and is not concerned with their destination or other intended movements or use of them. References in the cases to goods arriving “from abroad” do not mean they must have originated from abroad but simply that they are brought into Australia from abroad regardless of their origin. In my view that submission carries weight and is supported by the statements of Gibbs J in Bull relied on by de Jersey CJ in Mohammadi as well as the above statements of principle in subsequent appellate court judgements in Campbell and Toe adopted in Handlen and Paddison. [21] Mohammadi is the only authority referred to by the parties where the question to be decided in this case has been expressly considered. Mohammadi was not referred to in Campbell, Toe, and Handlen and Paddison. In another case, Stark v Plant [2010] 23 R v Toe [2010] SASC 39 at [79] 24 Bell v The Queen (1983) 8 CCC (3rd) 97 at 110; 25 R v Toe [2010] SASC 39 at [81]; 26 Section 307.11 “Importing and exporting commercial quantities of border controlled drugs”; -- 8 of 14 -- 9 WASCA 7427, where four of six offending publications on a lap top originated from Australia, the point under consideration in this case was not argued in that case although it is noted that two of the publications originated overseas in the first place which would have constituted an “import” in any event. The defendant, who was a 17 and then 18 year old psychology student at the time of the offences with no criminal history28, pleaded guilty to four charges including two of importing under section 233(1)(b) and one of exporting under section 233(1)(c) of the Act in respect of all six offending publications. [22] One ground of appeal in Mohammadi, was that the trial judge erred in directing the jury that importation was established where the narcotic goods were loaded on a ship in Darwin, sailing to Townsville by entering international waters, and then re-entering territorial waters to berth at Townsville. That is, in circumstances similar to this case, the goods originally came from Australia and were brought back into Australia after having sailed through international waters. [23] At [19] in Mohammadi de Jersey CJ cited the following passages from the judgment of Gibbs J (as he then was) in Bull. In coming to the view stated above at [11] in Bull, Gibbs J. who was in the majority said at page 254: No definition of „import‟ or of any derivative of the word is contained in the Act. Its ordinary meaning is „To bring in, or cause to be brought in (goods or merchandise) from a foreign country, in international commerce” (Oxford English Dictionary). In accordance with this meaning it has been said that the word „import‟ in various sections of the Act means „bring in to the Commonwealth’ …. (de Jersey CJ’s emphasis) [24] Gibbs J then proceeded to say that there is not an importation if a ship enters a harbour in transit without there being an intention of discharging the goods at that location. Among other cases, he referred to Wilson v. Chambers & Co Pty Ltd (1926) 38 CLR 131 at 136, 147 & 150. Then at 255 in Bull Gibbs J. said: The remarks made by Isaacs J. in Wilson v. Chambers & Co Pty Ltd…with regard to s 68 appear to be a correct general statement of the meaning of importation for the purposes of the Act. After saying that “the expression „imported goods‟, in s 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”, Isaacs J. went on to say (66): “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 27 McLure P, Owen & Buss JJA – unanimous decision delivered 28 April 2010; it was an appeal against sentence in which a section 19B bond under the Crimes Act 1914 was refused; 28 At [3] & [8] per McLure P.; -- 9 of 14 -- 10 „imported goods‟ and it is the duty of the „owner‟ to comply with the provisions of s 68”29. (de Jersey CJ’s emphasis) [25] After citing the above passages, de Jersey CJ in Mohammadi concluded that narcotic goods from Darwin constituted an “import” when the vessel returned from international waters to dock in Townsville consistent with the directions given by the trial judge to the jury. He said at paragraph [20]: Consistently with the above analysis, an importation should be regarded as having occurred if goods are brought from outside the territorial boundaries of Australia into an Australian port. They are then brought “from abroad”, which is the essence of “importation”: they are brought into a country from outside that country. The word “importation” derives from the Latin “portare” meaning to carry; hence, the act of carrying in. Coming from “abroad” means coming from outside one‟s “home country” (Oxford English Dictionary), not necessarily from any particular foreign land mass or populated place. The Macquarie Dictionary defines “abroad” as “any place outside one‟s own country, especially if overseas”. Most often, the goods will have come from a foreign country. But that is not essential for there to be an importation. Consistently with that, the Australian Oxford Dictionary (2nd ed, 2004) offers, as the first meaning for the word “import”: bring in (especially foreign goods or services) to a country”. On the assumption these drugs originated in Darwin, they were nevertheless imported into Australia when they were not left in international waters, but brought back in to the port of Townsville. (His Honour’s emphasis) [26] I interpolate that these statements are consistent with what Gibbs CJ said in respect of a charge of “import” of narcotic drugs under repealed section 233B (1)(b) of the Act in He Kaw Teh v R (1985) 157 CLR 523;[1985] HCA 43 as follows at [3]: To "import" simply means to bring into the Commonwealth from abroad - see Lyons v. Smart [1908] HCA 34; (1908) 6 CLR 143, at p 150; Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203, at p 254. The word "import" does not carry its own connotation of knowledge or intention. If one in fact brings goods into Australia from abroad one imports them, whatever one's intention may be and whether or not one knows their nature or quality. Paragraph (b) does not contain any words - such as "knowingly" - which themselves might reveal that the Parliament intended to make the importation of narcotics an offence only if it was intentionally or knowingly carried out; in that respect it differs from par.(d) of s.233B(1), which makes it an offence to be "knowingly concerned" in the importation of prohibited imports that are narcotic goods. Gibbs CJ then proceeded to consider the presence of a common law presumption of “intention” that could be displaced by statute and other matters not relevant to this case. It is noted though that, unlike an offence of importing narcotics under former section 29 Section 68 (Entry of imported goods) is in Division 4 (The entry, unshipment, landing and examination of goods) of Part IV (The Importation of Goods); -- 10 of 14 -- 11 233B(1)(b), the parliament by enactment in 200130 made an offence of importing “prohibited imports” under section 233(1)(b) one of strict liability31. [27] In support of his conclusion in Mohammadi de Jersey CJ referred to two authorities in the United States32. In Brown v. United States, 16 F. 2d 682 (1926), 685, it was held that bringing liquor into the United States from a vessel anchored 30 miles off shore was not an “import”. However, unlike the Customs Act 1901 (Cth), the applicable legislation imposed duty “on all articles when imported from any foreign country into the United States” (His Honour’s emphasis). That would exclude articles that originated in the United States. Section 233(1)(b) of the Customs Act 1901 (Cth) is not limited in that way. [28] In the second case, US v Cabaccang, 332 F.3d 622 (2003) the facts are on all fours with the current case. Unlawful drugs were transported on a non stop flight from one point in the United States to another point in the United States after having travelled through international air space. The appeal court held by majority that did not constitute an importation. However, the governing legislation limited the scope of operation of the relevant provision where it relevantly provided “import into the United States from any place outside thereof …” (His Honour’s emphasis). Section 233(1) (b) of the Customs Act 1901 (Cth) does not have that limitation which supports the conclusions of de Jersey CJ in Mohammadi. [29] In one example given by de Jersey CJ in support of his conclusion at [22] of his judgement, he described a case where drugs are transported from Australia to another country “Intending to sell them there”. The scenario continues that he could not sell them so he brought them back to Australia for distribution. His Honour concluded that this is an importation into Australia notwithstanding that they originated from Australia. Counsel for the defendant in this case argued that, because his Honour referred to “Intending to sell them there” i.e. at a location overseas, and then intending to distribute them upon return to Australia, this was a necessary ingredient in finding that that was an importation. That is, for there to be an importation in respect of goods that originated in Australia, there must be a commercial flavour about it which is perhaps in some respects consistent with the views of McMurdo P in Mohammadi (cited later in these reasons). I respectfully do not agree that that is what His Honour was saying. In my view he was simply giving a common example of an import of goods, namely drugs that originated in Australia where, as a matter of common experience, there is often a commercial purpose. It is also counter to the terms of section 233(1)(b) of the Act which is an offence of strict liability. It is not limited by notions of commerciality nor is it concerned with notions of “intention” in respect of any physical element of the offence. [30] Further, in respect of the commerciality submission, during the hearing I sought a response from defence counsel as to the many cases that come before this court where a 30 The Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (No 24 of 2001), Schedule 21(94) inserted subsection 233(1AB); 31 This difference is perhaps reflected in the maximum penalties in section 233(1)(b) and former section 233B(1) (now in Part 9.1 of the Code). The former is a fine whereas the latter provides for larger fines with imprisonment; 32 At paras [26] & [27]; -- 11 of 14 -- 12 person goes overseas for a holiday and buys a “prohibited item” for personal use which is brought into Australia upon return thus constituting an “import” under section 233(1)(b). Examples include the purchase of anabolic steroids for personal use in body building or performance enhancement in sport, or a flick knife intended for personal protection. Defence counsel sought to draw a distinction between those cases and the present case on the basis that “prohibited goods” obtained overseas and brought into Australia for personal use constitutes “import” whereas there must be a degree of commerciality to constitute “import” for “prohibited goods” originating in Australia that are brought back into Australia. I reject that distinction because there is nothing in section 233(1)(b) requiring commerciality. There is nothing limiting the scope of that provision by reference to the source or origin of those goods as was the case in the two United States cases cited earlier nor is there any suggestion that there must be some commercial intent to constitute “import” for goods crossing the border into Australia originally sourced in Australia but not for goods that are sourced elsewhere. [31] It was submitted for the defendant that section 68 in Division 4 (The Entry, Unshipment, Landing, and Examination of Goods) Part IV (The Importation of Goods) of the Act may provide some assistance in determining the meaning of “import” in section 233(1)(b) in Division 2 (Penalties) Part XIII (Penal Provisions) to support the view, among other things, that there must be a degree of commerciality for there to be an “import”. Relevantly, section 68 applies to “goods that are imported into Australia” (section 68(1)(a)) or “intended to be imported into Australia” (section 68(1)(b)) and does not apply in a range of circumstances including “goods that are accompanied …personal or household effects of a passenger …of …a[n] aircraft” (section 68(1)(d)). However, goods that are, to the knowledge or belief of the passenger, to be sold or used in the course of trading, do not fall within that person’s personal or house hold effects (section 68(4)(b)) so that section 68 would require an “entry”. [32] Section 68 is concerned with “entry” of “goods” that are imported or intended to be imported. It creates obligations on persons under certain circumstances (section 68(2) & (3)) to “enter” them in a variety of ways eg by completing an import declaration (section 68(3A)(a). “Entry” is a separate concept to that of “import”. The obligation is created once the goods are imported or intended to be imported provided that the conditions in section 68 are satisfied. Further, section 68 is concerned with “goods” generally and not “goods” that have been designated “prohibited imports” with which section 233(1)(b) is concerned. I reject the submission that section 68 assists in determining the meaning of “import” as the defendant contends. [33] It was also submitted that section 49A in Division 1A (Preliminary) of Part IV (The Importation of Goods) of the Act may be of assistance in support of the defendant’s contention that, as the goods originated in Australia, he did not import them. This section provides a mechanism where a ship or aircraft will be deemed to have been imported into Australia after the expiration of a specified period if a number of conditions are satisfied. The process is that Customs is to serve a notice on a ship or aircraft by affixing on a prominent part thereof if the ship or aircraft has entered Australia and it is believed that the ship or aircraft “might have been imported into Australia”. In my view section 49A does not assist in ascertaining the meaning of “import” as contended for by the defendant, -- 12 of 14 -- 13 or at all. To the contrary, as it is a deeming provision, it suggests it is an exception to the general meaning of “import”. Indeed, by subsection 49A (8), “Australia” in section 49A “shall be read as including a reference to waters within the limits of any State or Territory” which seems contrary to the concept of “import” as stated in Bull and Wilson v Chambers. [34] On the critical question in this case Mc Murdo P in Mohammadi came to a different view to that of de Jersey CJ whereas Chesterman J (as he then was) did not comment on the issue on the basis that it was not a reasonable inference that the drugs were loaded in Darwin but were loaded in some foreign port: at [99]. Mc Murdo P relevantly said at [79] (footnotes omitted): The term “imports” as used in s 233B is not defined in that Act. It bears its ordinary meaning: Election Importing Co Pty Ltd v Courtice; R v Bull and McGurk v Customs. The Macquarrie Dictionary‟s primary definition of “import” is “to bring in from a foreign country, as merchandise or commodities, for sale, use, processing, or re-export”. Secondary definitions relevantly include “that which is imported from abroad; an imported commodity or article” and “the act of importing or bringing in; importation, as of goods from abroad”. Its definition of “abroad” includes “any place outside one‟s own country, especially if overseas.33 [35] After citing Gibbs J in Bull at 254, in the case of the drugs being loaded from some place “abroad” and not in Darwin, Mc Murdo P concluded that this would be an import. She said at [82] that “s 233B means brings goods …into Australia, not necessarily from a foreign country”. However, if the drugs were loaded in Darwin at [83]she said: In the absence of clear authority (and neither party has provided any) I cannot accept that the ordinary meaning of “imports” in s 233B is that drugs placed on a ship in Darwin for transportation to Townsville which are taken into international waters in transit to Townsville from Darwin are then imported into Australia. To import goods into Australia under s 233B it is in my view necessary that the goods are sourced from outside Australia, that is, from abroad. What then of the person who takes prohibited drugs from Australia to another country and then returns to Australia with some or all of the drugs? Has the person then imported the drugs into Australia? The answer will turn on the precise factual matrix. If the goods were taken abroad for export, perhaps so; if for personal use during an overseas trip, perhaps not. In any case, alternative State charges relating to the possession of the prohibited drug would presumably be open. … [36] For the reasons and observations previously outlined I respectfully prefer the reasoning and conclusions of de Jersey CJ in agreeing with the trial judge’s directions to the jury to that effect. This is also supported by a consideration of the entire legislative context in which the words “import” and “export” are used. “Import” in section 233(1)(b) is not 33 Election Importing Co Pty Ltd v Courtice (1949) 80 CLR 657, Williams J, 661 – 662; R v Bull (1974) 131 CLR 203, 254; McGurk v Customs (1987) 73 ALR 381, 389; -- 13 of 14 -- 14 concerned with where the items originated just as “export” is not concerned with their destination. It is not concerned with notions of a commercial intent which is often relevant for offences involving the importation of drugs or precursors in former section 233B of the Act or Division 307 of the Code. Further, an offence under section 233(1)(b) is an offence of strict liability in which there are no fault elements for any physical elements. The conclusion of de Jersey CJ is consistent with subsequent appellate court authority adopting a narrow meaning of “import” whereby the criminal act occurs with the physical act of voluntarily “crossing the border” with, or “bringing in”, a “prohibited import”. [37] I find on the agreed facts that the defendant did “import” the images on his lap top even though they had originated from Australia. [38] This matter is a “customs prosecution” within the meaning of section 244(a) of the Act having been instituted in this court pursuant to section 245(1)(f) being a court of summary jurisdiction for the State of Queensland. Generally, the law in force in this state in respect of summary proceedings applies subject to the Act: section 248. The law in respect of summary proceedings in this state is the Justices Act 1886 (Qld). Section 48 of the Justices Act 1886 (Qld) provides that a court may amend a complaint in a variety of circumstances. While I have not heard submissions on the point, it may have been open to consider amending the charge to “export” had I come to a different conclusion on the meaning of “import”. The importation alleged in the complaint was on 4 May 2010. Contrary to the standard limitation period of 12 months in section 52(1) Justices Act 1886 (Qld), section 249 of the Customs Act 1901 provides that a customs prosecution “may be instituted at any time within 5 years after the cause thereof”. -- 14 of 14 --