CEO of Customs v Labrador Liquor Wholesale Pty Ltd [2001] QCA 280 (2002) 188 ALR 493

SUPREME COURT OF QUEENSLAND CITATION: CEO of Customs v Labrador Liquor Wholesale P/L & Ors [2001] QCA 280 PARTIES: THE CHIEF EXECUTIVE OFFICER OF CUSTOMS (plaintiff/respondent) v LABRADOR LIQUOR WHOLESALE PTY LTD (A C N 050 406 221) (first defendant/first appellant) LAWRENCE ERIC WRIGHT (second defendant/second appellant) JEFFREY ANDREW JOHN BRYCE (third defendant/third appellant) FILE NO/S: Appeal No 5617 of 2000 SC No 904 of 1997 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 20 July 2001 DELIVERED AT: Brisbane HEARING DATE: 30 March 2001 JUDGES: McMurdo P, Thomas JA and Byrne J Separate reasons for judgment of each member of the Court; Thomas JA and Byrne J concurring as to the orders made, McMurdo P dissenting in part ORDER: The appeal is allowed. Delete the answers given below to questions (a) and (b) and substitute the answer "Proof beyond reasonable doubt" to both. Delete the answers given below to question (c) and (d) and substitute the answer "Yes" to both. Order that the respondent is to pay the appellant's costs of this appeal to be assessed. CATCHWORDS: TAXES AND DUTIES – CUSTOMS AND EXCISE – JURISDICTION AND PROCEDURE IN CUSTOMS PROSECUTIONS – whether s 92 Evidence Act 1977 (Qld) is applicable to proceedings under the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) – where s 92 does not apply to criminal proceedings - where Customs Act expressly permits prosecutions to be conducted in accordance with civil -- 1 of 26 -- 2 practices and procedures – where no logical reason why a proceeding that is essentially criminal in nature cannot be conducted using civil procedure – whether the current prosecutions are criminal proceedings within the meaning of the Evidence Act – where the matter if carried to its conclusion may result in a sentence of punishment then it may be characterised as criminal – where prosecution remained a criminal proceeding despite the use of civil procedure. TAXES AND DUTIES - CUSTOMS AND EXCISE – PENAL PROVISIONS – EVASION OF DUTY – PENALTIES – where unlawful failure to pay customs and excise duties – whether civil or criminal standard of proof required in prosecution – where procedural provision do not provide clear assistance – where language and objectives of Act reveal an intention to punish and deter – where in the absence of clear statutory provisions to contrary and despite the procedural effects of s 247 Customs Act 1901 (Cth) and s 133 Excise Act 1901 (Cth) the standard of proof required is criminal. Administrative Decisions (Judicial Review) Act 1977 (Cth) Crimes Act 1914 (Cth), s 15D, s 407 Customs Act 1901 (Cth), s 33, s 33(1), s 33(2), s 198, s 233(B)(1A), s 234(1)(a), s 234(1)(d), s 243(B)(1), s 244, s 245, s 247, s 248, s 249, s 255 Customs and Exercise Management Act 1979 (UK) Evidence Act 1977 (Qld) s 3, s 92, s 92(1) Evidence Act 1995 (NSW), s 86 Excise Act 1901 (Cth), s 61, s 120(1)(iv), s 120(2), s 133, s 134, s 135, s 136, s 137, s 138 Finance Act 1953 (UK), s 33 Income Tax Assessment Act 1936 (Cth) Income Tax and Social Services Contributions Assessment Act 1936-51 (Cth), s 237 Judiciary Act 1903 (Cth), s 79 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules, r 483 Attorney-General v Bradlaugh [1885] 14 QBD 667, referred to Brackenridge v New Zealand [2000] 1 QdR 1, considered Chief Executive Officer of Customs v Jiang [2001] FCA 145 (1 March 2001), considered Chief Executive Officer of Customs v Tony Longo Pty Ltd [2001] NSWCA 147, considered Commissioner of Australian Federal Police v McMillan (1986-87) 13 FCR 7, distinguished -- 2 of 26 -- 3 Comptroller-General of Customs v D’Aquino Bros Pty Ltd (1996) 135 ALR 649, considered Charlton v Rogers; Ex parte Charlton (1985-86) 20 ACrimR 238, considered Hayes v Bondaletoff [1986] 1 QdR 455, considered Jack Brabham Holdings Pty Ltd v Button (1988-89) 94 FLR 278 Jackson v Butterworth [1946] VLR 330, considered Jackson v Gromann [1948] VLR 408, considered Jago v District Court (New South Wales) (1989-90) 168 CLR 23, considered Mallan v Lee (1949-50) 80 CLR 198, considered May v O’Sullivan (1954-55) 92 CLR 652, referred to Minister for Business and Consumer Affairs v Evans (1984) 54 ALR 128, considered Moore v Jack Brabham Holdings Pty Ltd (1986-87) 7 NSWLR 470, considered Murphy v KRM Holdings Pty Ltd (1985-86) 8 FCR 349, considered Naismith v McGovern (1953-54) 90 CLR 336, considered Preston v Chief Executive Officer of Customs [2000] QCA 186; CA No 1260 of 2000, 22 May 2000, referred to Russell v Russell (1976) 134 CLR 495, considered Scott v Geoghegan & Sons Pty Ltd (1969) 43 ALJR 243, considered The King and The Federal Commissioner of Taxation v McStay (1945) 7 ATD 527, considered Williams v Spautz (1991-92) 174 CLR 509, considered Witham v Holloway (1994-95) 183 CLR 525, referred to Woolmington v Director of Public Prosecutions [1935] AC 462, referred to Wong v Kelly (1999) 154 FLR 200, considered COUNSEL: T D O North SC with J Brasch for the appellants F W Redmond for the respondent SOLICITORS: Forde Lawyers for the appellants Australian Government Solicitor for the respondent [1] McMURDO P: The appellants have been prosecuted by the respondent for breaches of ss 61 and 120(1)(iv) Excise Act 1901 (Cth) ("Excise Act") and ss 33, 234(1)(a) and 234(1)(d) Customs Act 1901 (Cth) ("Customs Act"). The respondent alleges the appellants unlawfully failed to pay customs and excise duties due on alcohol and cigarettes by falsely claiming the goods had been exported to the Solomon Islands and Fiji during 1996. [2] The parties each asked the primary judge to determine the following preliminary questions: (a) What is the standard of proof required of the plaintiff (respondent) in these customs prosecutions in order for him to obtain convictions for -- 3 of 26 -- 4 offences against s 33, s 234(1)(a) and s 234(1)(d) of the Customs Act? (b) What is the standard of proof required of the plaintiff (respondent) in these excise prosecutions in order for him to obtain convictions for offences against s 61 and s 120(1)(iv) of the Excise Act? (c) Are these customs prosecutions criminal proceedings for the purposes of the Evidence Act 1977? (d) Are these excise prosecutions criminal proceedings for the purposes of the Evidence Act1977? [3] After a careful and comprehensive analysis of the law on these difficult questions, the primary judge answered the questions as follows: (a) The civil standard of proof. (b) The civil standard of proof. (c) No. (d) No. [4] The appellants contend the answers should have been: (a) Proof beyond reasonable doubt. (b) Proof beyond reasonable doubt. (c) Yes. (d) Yes. [5] I am not entirely convinced of the utility of splitting these issues from factual determinations, but as that course was adopted before the primary judge it is necessary for us to determine these questions in the absence of factual findings. [6] Section 33 Customs Act is contained in Part III of that Act (Customs control examination and securities generally) and relevantly provides: "33. Persons not to move goods subject to the control of the Customs (1) Except as authorised by this Act, a person shall not move, alter or interfere with goods that are subject to the control of the Customs. Penalty: $50,000. (2) If a person who commits an offence against subsection (1) does the act that constitutes the offence: (a) on behalf of another person of whom he is an employee; or (b) at the direction or with the consent or agreement (whether express or implied) of another person; that other person commits an offence and is punishable, on conviction, by a fine not exceeding $50,000. (3) It is a defence to a charge arising under subsection (2) if the person charged proves that he took reasonable precautions, and exercised due diligence, to prevent the person who is alleged by the charge to have moved, altered or interfered with goods in contravention of subsection (1) from so moving, altering or interfering with those goods. … " -- 4 of 26 -- 5 [7] Section 234 is contained in Part XIII of that Act (Penal Provisions) and relevantly provides: "234 Customs offences (1) A person shall not: (a) Evade payment of any duty which is payable; … (d) Knowingly or recklessly: (i) make a statement to an officer that is false or misleading in a material particular; or (ii) omit from a statement made to an officer any matter or thing without which the statement is misleading in a material particular; (2) A person who contravenes sub-section (1) is guilty of an offence punishable upon conviction; (a) in the case of an offence against paragraph (1)(a), by: (i) where the Court can determine the amount of the duty on goods the payment of which would have been evaded by the commission of the offence if the goods had been entered for home consumption on: (A) where the date on which the offence was committed is known to the Court – that date; or (B) where that date is now known to the Court – the date on which prosecution for the offence was instituted; a penalty not exceeding 5 times the amount of that duty and not less than 2 times that amount; or (ii) where the Court cannot determine the amount of that duty, a penalty not exceeding $50,000; … (c) subject to subsections (3) and (4), in the case of an offence against (1)(d), by a penalty not exceeding $5,000; … (3) Where a person is convicted of an offence against paragraph (1)(d) in relation to a statement made or an omission from a statement made, in respect of the amount of duty payable on particular goods, a Court may, in relation to that offence, impose a penalty not exceeding the sum of $5,000 and twice the amount of the duty payable on those goods. (4) If a person is convicted of an offence against paragraph (1)(d) in relation to a statement made, or an omission from a statement made, in respect of an amount of diesel fuel rebate applied for under section 164, a court may, in relation to that offence, impose a penalty not exceeding the sum of $5,000 and twice the amount by which the rebate applied for exceeds the rebate to which the person would have been entitled had the person not made the false or misleading statement, or the omission, to which the offence relates." [8] Part XIV of that Act deals with Customs prosecutions and relevantly provides: -- 5 of 26 -- 6 "244 Interpretation Proceedings by the Customs for the recovery of penalties … are herein referred to as Customs Prosecutions. 245 Institution of Prosecutions (1) Customs prosecutions may be instituted by the CEO in the name of the office of the CEO by action, information or other appropriate proceeding: (a) in the Supreme Court of a State; (b) in the Supreme Court of the Australian Capital Territory; (c) in the Supreme Court of the Northern Territory; (d) in a County Court or District Court of a State; (e) in a Local Court, being a Local Court of full jurisdiction, of South Australia or of the Northern Territory; or (f) in a court of summary jurisdiction of a State, of the Australian Capital Territory or of the Northern Territory. … 247 Prosecution in accordance with practice rules 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. 248 State Court practice Subject to the provisions of this Act the provisions of the law relating to summary proceedings in force in the State or Territory where the proceedings are instituted shall apply to all Customs prosecutions before a Court of summary jurisdiction in a State of Territory, and an appeal shall lie from any conviction order for condemnation or order of dismissal to the Court and in the manner provided by the law of the State or Territory where such conviction or order is made for appeals from convictions or orders of dismissal, and notwithstanding anything to the contrary in the law of the State or Territory, an appeal shall lie from an order of dismissal to any court to which and in the manner in which an appeal lies from a conviction. 249 Commencement of prosecutions Customs prosecutions may be instituted at any time within 5 years after the cause thereof. [9] Section 61 Excise Act is contained within Part VI of that Act (Payment of Duty, Removal of Excisable Goods from Factories, and Excise Control) and provides: "Customs control 61. All excisable goods are, until delivered for home consumption or for exportation to a place outside Australia, whichever first occurs, subject to the control of Customs and must not be moved, altered or interfered with except as authorised by this Act. Penalty: $20,000. -- 6 of 26 -- 7 [10] Section 120 is contained in Part X of that Act (Penal Provisions) and relevantly provides: "Offences 120. (1) A person shall not: … (iv) Evade payment of any duty which is payable; … (2) A person who contravenes subsection (1) is guilty of an offence punishable upon conviction: … (b) in the case of an offence against paragraph (1)(iv), by: (i) where the Court can determine the amount of the duty on goods the payment of which would have been evaded by the commission of the offence if the goods had been entered for home consumption on: (A) where the date on which the offence was committed - that date; or (B) where the date is not known to the Court - the date on which the prosecution for the offence was instituted; a fine not exceeded 5 times the amount of that duty and not less than 2 times that amount; or (ii) where the Court cannot determine amount of that duty, a fine not exceeding $50,000; … " [11] Sections 133-138 Excise Act inclusive are comparable to s 244 to s 249 of the Customs Act which are set out above. Are the customs and excise prosecutions criminal proceedings for the purposes of the Evidence Act 1977? [12] I find it convenient to deal with questions (c) and (d) first; it is not submitted that there are any relevant distinctions between the provisions in each Act warranting different answers to these questions. [13] The learned primary judge traced the origin of these prosecutions to the Court of Exchequer, established to deal with Crown suits.1 The Court of Exchequer was abolished by the Supreme Court of Judicature Act 1873 and its revenue jurisdiction was transferred to the Exchequer Division of the High Court and later to the Queen's Bench Division of the High Court. Even in those early days, there was a division in opinion as to whether such proceedings were criminal: see Attorney- General v Radloff.2 The Crown Suits Act 1865 deemed the Court of Exchequer to 1 See The Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2000] QSC 171, [15] and the cases there cited. 2 [1854] 10 Ex 84; 156 ER 366. -- 7 of 26 -- 8 be a court of civil judicature for purposes of revenue matters and provided an avenue of appeal whether the proceeding was criminal or civil. Brett MR in Attorney-General v Bradlaugh,3 whose observations have often been quoted in subsequent cases, considered that these proceedings were not criminal; the recovery of a penalty for a prohibited act does not make that act a crime. [14] The historical context of these proceedings provides interesting background and context but is of limited assistance in interpreting these statutes. [15] The old procedures used in the United Kingdom for recovery of customs and excise duties ended with the enactment of the Finance Act 1953 (UK), s 33 and more recently the Customs and Excise Management Act 1979 (UK) clearly provides that such offences are criminal offences.4 Unfortunately, Australia does not have this advantage of clear legislative provisions, despite the recommendations of the Australian Law Reform Commission.5 [16] The appellants contend that whilst s 247 Customs Act and s 133 Excise Act allow customs prosecution to "be commenced, prosecuted and proceeded with … in accordance with the usual practice and procedure … in civil cases", in this case the usual practice and procedure of the Supreme Court of Queensland, the proceedings remain criminal proceedings for the purposes of the Evidence Act 1977 (Qld). [17] The terms of s 247 Customs Act and s 133 Excise Act make the Evidence Act 1977 (Qld) applicable to this case. Section 3 of that Act provides a limited definition of "criminal proceeding": it "includes a proceeding wherein a person is charged with a simple offence, and an examination of witnesses in relation to an indictable offence." These proceedings are plainly not within that definition which is not , however, exclusive.6 The term "civil proceeding" is not defined. The provisions of the Evidence Act 1977 sometimes draw distinctions between criminal7 and civil8 proceedings, but many provisions have general application. [18] Section 247 Customs Act and s 133 Excise Act also have the effect that the Uniform Civil Procedure Rules, which apply to civil proceedings in the Supreme, District and Magistrates Courts9 apply to customs and excise prosecutions brought in Queensland: see Preston v Chief Executive Officer of Customs.10 3 [1885] 14 QBD 667. 4 See Chief Executive Officer of Customs v Jiang [2001] FCA 145 (1 March 2000), [42]-[44] inclusive. 5 See fn 1, [101]. 6 Compare the definition of "criminal proceedings" in Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW) which specifically exclude prosecutions under the Taxation Administration Act 1953 (Cth). 7 See, for example, s 15 (Questioning a person charged in a criminal proceeding); s 23 (Commission or order in criminal cases); s 93 (Admissibility of documentary evidence as to facts in issue in criminal proceedings); s 131 (Witnesses for defence to be sworn); s 131A (Court may order interpreter to be provided) and s 132A-132C (Admissibility of evidence in criminal proceedings). 8 See, for example, s 22 (Commission, request or order to examine witnesses); s 36 (Application to Supreme Court to obtain evidence of a civil proceeding in another jurisdiction); s 38 (Privilege of witnesses); s 75 to s 77 (Proof of telegraphic messages); s 78 to s 82 (Admissibility of convictions in civil proceedings) and s 92 (Admissibility of documentary evidence to facts in issue). 9 UCPR, r 3 10 [2000] QCA 186, 10. -- 8 of 26 -- 9 [19] The question as to whether these proceedings are civil or criminal, is by no means an easy one. Some limited assistance can be gained from the judicial consideration given to the prosecution of taxation offences. Williams J in The King and The Federal Commissioner of Taxation v McStay11 noted that taxation prosecutions were not strictly criminal proceedings; the defendant is not sent to prison as a direct punishment; the direct punishment is the penalty and any imprisonment is simply a means of enforcing payment of the penalty.12 [20] Fullagar J in Jackson v Butterworth13 regarded proceedings for taxation prosecutions under the Income Tax Assessment Act 1936 (Cth) as civil not criminal in character despite the use of the word "offence" and "conviction".14 Later, in Jackson v Gromann15 Fullagar J explained that such proceedings, whilst civil for some purposes, were quasi-criminal as they involved a conviction for an offence and a penalty was exacted. [21] In Naismith v McGovern,16 the High Court (Williams, Webb, Kitto and Taylor JJ) found that a person charged with offences under the Income Tax and Social Services Contributions Assessment Act 1936-1951 (Cth) was entitled to discovery of documents against the Commissioner of Taxation because s 237 of that Act applied the civil procedure of the court; this was so even though the penalties were penal and the prosecutor had no such right to discovery. [22] It is the authorities dealing with the relevant or related sections of the Customs Act and the Excise Act which are most helpful in determining whether these proceedings are criminal. In Minister for Business and Consumer Affairs v Evans,17 Carruthers J convicted the defendant of breaches of the Customs Act. His Honour discussed the nature of proceedings under s 245 Customs Act and after thoroughly reviewing the authorities, observed: "… it has been authoritatively established that proceedings under s 245 are not criminal in nature. They have been clearly categorised by high authority as civil proceedings." [23] On appeal, Mahoney JA (as he then was), with whom Priestley JA and McHugh JA (as he then was) agreed,18 upheld the conviction and noted that classification of contraventions of the law as criminal or civil proceedings has long been recognised: "But, in the case at least of a penalty of the present kind, it might be thought that the object of the penalty, and so of the proceedings to recover it is the punishment of the person who has contravened the relevant statute or rule of law. And, in practice, such words as 'offence' and 'criminal' are apt to be misleading for they are applied both to contraventions which are criminal in nature and also to contraventions which give rise only to civil remedies: … 11 (1945) 7 ATD 527. 12 At 533. 13 [1946] VLR 330. 14 At 332-333. 15 [1948] VLR 408, 412. 16 (1953-54) 90 CLR 336. 17 (1984) 54 ALR 128, 153. 18 Evans v Button [1988] 13 NSWLR 57. -- 9 of 26 -- 10 It was, in my opinion, the purpose of [s 247 Customs Act] relevantly to assimilate customs prosecutions to proceedings of a civil nature: cf State v Judge Fawsitt [1945] IR 183 at 193 and R v Justices of the Appeals Committee of the County of London Quarter Sessions (at 184). It was, in my opinion, the legislative purpose that Customs prosecutions, when brought in the Supreme Court, should be subject inter alia, to the powers of amendment appropriate to such proceedings. … But what I have said does not mean that in every respect the rights of a defendant in such a prosecution are congruent with those of a defendant in an ordinary civil proceeding. The court will be conscious in such a proceeding of the fact that what is involved is a breach of the public law, that the penalties in question are intended as sanctions for breach of the public law, and that the offences in question may carry with them the opprobrium appropriate to breaches of such law. It will have regard to the seriousness, in the individual case, of the punishment involved in an order that such penalties be paid." [24] In Moore v Jack Brabham Holdings Pty Ltd,19 Hunt J (as he then was) noted that unlike the taxation statutes, s 242 Customs Act, prior to that section's repeal in 1982, permitted a court to imprison a defendant previously convicted of a similar offence;20 this argument was not before Carruthers J in Minister v Evans:21 In my respectful view, those arguments completely nullify any conclusion that either Attorney-General v Bradlaugh or the taxation cases had authoritatively established that proceedings by way of a customs prosecution (as opposed to a taxation prosecution) are or were not criminal in nature. … … the true nature of the proceedings brought in the Supreme Court as a customs prosecution is (or was in relation to offences committed prior to the repeal of s 242 in 1982) criminal and not civil, despite the civil nature of the procedure which is made applicable to them by s 247. … My conclusion that a customs prosecution is criminal in nature does not, however, necessarily result in having the principles applied in the criminal courts applied also to the defendants' application to have the present proceedings dismissed as an abuse of process. That conclusion is relevant to my decision in selecting the appropriate principles to apply to that application, but it cannot dictate such a decision." 19 (1986-87) 7 NSWLR 470. 20 Up until 1957, s 258 Customs Act allowed a court to convict an offender liable to pay a pecuniary penalty to prison pending payment or the giving of security: see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2000] QSC 171, [48]-[49]. 21 At 481-2. -- 10 of 26 -- 11 Hunt J ultimately concluded that the significant delay in this case did not entitle the defendants to have the proceedings dismissed. [25] Hunt J's decision was considered on appeal in Jack Brabham Holdings Pty Ltd v Button.22 Mahoney JA (as he then was) and Clark JA dismissed the appeal on the basis that whether the proceedings were criminal or civil in nature or even a hybrid, an abuse of process was not established. Kirby P (as he then was) agreed the appeal should be dismissed, relevantly noting:23 "Unlike Hunt J, 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. See the observations of Mahoney JA in Evans v Button (at 74). 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. They are also more closely akin to criminal proceedings, properly so called, than, say, protective proceedings involving professional discipline. All that s 247 is concerned with is the way in which such prosecutions are proceeded with. It relates to the matters of practice and procedure, once the prosecution is under way. It is not concerned with whether the prosecution should be underway at all. I do not discern in s 247 a legislative purpose to exclude the beneficial operation of the relief which the court may give from prosecutions which are stale, for any purpose prejudicial or whose continuance would be, in the circumstances, oppressive or unjust." [26] The respondent places some reliance on Commissioner of Australian Federal Police v McMillan24 where Burchett J considered proceedings brought under s 243B Customs Act, which, like s 234, is also contained in Part XIII of that Act, for proceedings for an order that a person pay a pecuniary penalty to the Commonwealth in respect of prescribed narcotics dealing. The defendants objected to questions asked on the grounds of privilege against self-incrimination, legal professional privilege and the statutory non-compellability of spouses as witnesses in criminal proceedings, submitting that this was a "criminal proceeding" within the mean of s 407 Crimes Act 1914 (Cth). Burchett J noted:25 "The argument asserted, as its foundation, that the circumstances raising a liability to a penalty under s 243B necessarily involved an 22 (1988-89) 94 FLR 278. 23 At 291-2. 24 (1986-87) 13 FCR 7. 25 At 17-18. -- 11 of 26 -- 12 offence. But although this will, perhaps, generally be so, the terms of s 243A(3) make it clear that a particular defendant may not be guilty of any offence: R v Smithers; Ex parte McMillan (1982) 152 CLR 477 at 486. In any case, counsel's argument cannot be accepted, having regard to the clear statement in the joint judgment of the High Court in McMillan's case at 487 to the effect that the sections with which I am concerned relate to the 'imposition of a civil liability for pecuniary penalties', and that a proceeding under s 243B is: 'a civil action for penalties': see also s 243B(4) and (5)." These comments at first seem to favour the respondent's contentions but s 243B is very different to the offences in this case: it provides for "an order that a person pay a pecuniary penalty" (s 243B(1), (2) and (3)) which is deemed to be "a civil debt due to the Commonwealth" (s 243B(4)). Unlike proceedings for offences against s 33 and s 234 Customs Act and s 120 Excise Act, the proceedings in McMillan did not involve the commission of an offence punishable on conviction by a penalty or fine. [27] In Murphy v KRM Holdings Pty Ltd,26 the Full Court of the Federal Court considered whether actions by customs officers in seizing goods under s 203 Customs Act, were subject to judicial review. Fox J noted the statutory scheme under the Customs Act, including s 234 and s 245, envisaged "the commencement of civil proceedings" after seizure of goods but the seizure was unrelated to proceedings for any penalty. The decision to seize was not a decision "relating to the administration of criminal justice" within the Administrative Decisions (Judicial Review) Act 1977 (Cth). Pincus J (as he then was) noted that in Mallan v Lee27 only McTiernan J reached a final view as to the nature of proceedings for a prosecution under income tax legislation brought under a provision effectively indistinguishable from s 247 Customs Act. McTiernan J there said:28 "The authorities which have been cited in connection with this argument do not enable a clear conclusion to be reached that such procedural provisions alter the character which the words, 'guilty of an offence', naturally ascribe to the conduct of understating income in breach of s 230. I think that the better test is to accept the legislative definition of the conduct: I should hold accordingly that it is an offence and is criminal." Pincus J concluded: "Contraventions of s 234(1) may lead to a person's being held guilty of an offence punishable upon conviction - subs (2) says so. It is not easy to see what language the legislature could have selected more plainly to indicate the intention that those who contravene have infringed the criminal law rather than being merely guilty of a breach of the civil law." Beaumont J agreed with both Fox and Pincus JJ. 26 (1985-86) 8 FCR 349. 27 (1949-50) 80 CLR 198. 28 At 217-218; fn 26, 353-4. -- 12 of 26 -- 13 [28] Hunt CJ at CL with whom Ireland and Dowd JJ agreed, reconsidered these issues more recently in Comptroller-General of Customs v D'Aquino Bros Pty Ltd.29 That case concerned prosecutions under s 33 Customs Act and s 61 Excise Act. After fully reviewing the authorities, his Honour noted: "These offences are offences against the public law, punishable on conviction. I do not accept that any such offence punishable on conviction can properly be called a civil offence. I maintain the view which I have previously expressed that a customs prosecution is a proceeding in relation to a criminal offence and thus of a criminal nature. The only qualification which has been suggested is that a customs prosecution in the Supreme Court (to which this court's civil practice and procedure applies pursuant to s 247) should more properly be described as a 'hybrid', although even then it was said to be still 'quasi criminal' and 'much more closely akin to criminal proceedings, properly so-called, than to purely civil litigation between parties'. In England - again, where the offence involved was not one punishable on conviction - the proceedings to recover a penalty for such an offence have been described as 'quasi- criminal' (Attorney-General v Bradlaugh, 694)."30 [29] The New South Wales Court of Appeal subsequently revisited this question in Wong v Kelly31 Stein JA, with whom Mason P and Meagher JA agreed, directly considered the issue whether customs prosecutions were criminal proceedings. If so, the records of interview with Mr Wong may not have been admissible because of the operation of s 86 Evidence Act 1995 (NSW). As has been noted, that Act differs from the Queensland Act in its definition of "criminal proceeding".32 Stein JA observed: "I agree with Carruthers AJ that Jack Brabham Holdings v Minister (1988) 94 FLR 278 did not disturb the authority of Evans v Button, which has been applied on a number of occasions: see Kelly v JRA Ltd (1990) 92 ALR 651 and Comptroller-General of Customs v Kingswood Distillery Pty Ltd (unreported, Sully J, Supreme Court, New South Wales, 11 February 1997). In addition, the judgment of Byrne J in Comptroller-General of Customs v Jayakody (unreported, Supreme Court, Vic, Byrne J, No 4657 of 1992, 9 November 1993) and Pearce v Button (1985) 8 FCR 388 per Pincus J are also very helpful. Notwithstanding the passage of the Evidence Act, Evans v Button is still good law. If there be any inconsistency, and I am unpersuaded that there is, the Federal statute prevails and the Evidence Act needs to be read so as to accommodate any inconsistency. This follows from the provision in s 79 of the Judiciary Act 1903 (Cth). In my opinion, Carruthers AJ was right to treat the proceedings before him as civil and not criminal proceedings."33 29 (1996) 135 ALR 649. 30 At 661. 31 (1999) 154 FLR 200. 32 See fn 6 and 7. 33 At 209-210. -- 13 of 26 -- 14 [30] The Full Court of the Federal Court made some pertinent and relevant comments when it considered the validity of search warrants relating to offences under the Customs Act issued under s 198 of that Act and the validity of an application for judicial review as to their issue in Chief Executive Officer of Customs v Jiang.34 After carefully reviewing the divergent authorities, the court observed: "… that a decision taken in the course of an investigation leading to a Customs prosecution, such as a decision to issue a search warrant under s 198 of the Customs Act, is a 'related criminal justice process decision'. Such a decision is properly to be regarded as one 'made in a criminal justice process'. The provisions which create offences under the Customs Act lead, upon findings of guilt, to convictions for offences and the imposition of penalties. This strongly suggests that the legislature intended that prosecutions for such offences should be regarded as being at least quasi-criminal in nature. The fact that the provisions of the Crimes Act dealing with sentencing, imprisonment and release of federal offenders have been held to be applicable to Customs prosecutions tells strongly in support of this conclusion. So too does the possibility of imprisonment for failure or neglect to pay any penalty imposed. Customs prosecutions are instituted by the CEOC in the name of his office. They are not instituted by private individuals. The penalties which may be imposed upon conviction can significantly exceed the amount of the duty evaded by the commission of the offence. Customs prosecutions are clearly instituted not merely to recover debts due to the Commonwealth, but also to punish the offenders. It is also of some significance that, unlike s 78 of the Trade Practices Act 1974 (Cth), there is no provision in the Customs Act which provides that Customs prosecutions are not criminal proceedings. In addition, unlike income tax prosecutions, Customs Act offences are not expressly exempt from the definition of criminal proceedings in the Evidence Acts of the Commonwealth and New South Wales. … Customs prosecutions have about them a number of features typically associated with criminal proceedings. It is difficult to see how it may be said that they do not involve 'the criminal justice process'. There is no doubt that the authorities are divided upon the question of how such prosecutions should be characterised. There are observations in the judgment of Pincus J (with whom Beaumont J agreed) in Murphy v KRM Holdings Pty Ltd which provide powerful support for the conclusion that decisions taken in relation to Customs prosecutions should be characterised as being decisions which relate to the 'criminal justice process'. Moreover, Sch 2 par (e) of the ADJR Act expressly provides that decisions taken in 34 [2001] FCA 145 (1 March 2001), [77]-[80], [82], [86]-[87]. -- 14 of 26 -- 15 connection with the issue of warrants under s 198 of the Customs Act are to be regarded as 'decisions relating to the administration of criminal justice'. That too is a very important consideration. At the very least, Customs prosecutions ought to be regarded as 'quasi- criminal' or 'hybrid' in nature. Decisions taken in relation to them cannot be regarded as being divorced from the criminal justice process. … The fact that the procedures used to prosecute Customs offences in the higher court are civil, and not criminal, obviously has implications so far as the standard of proof is concerned. It also has implications when determining whether Customs prosecutions are criminal proceedings for the purpose of the various statutes which deal with the admissibility of evidence. However, the fact that civil procedures are used in such cases does not mean that decisions taken in relation to them are not be regarded as 'related criminal justice process decisions'. Customs prosecutions appear to us to share many of the characteristics of criminal proceedings. Notwithstanding some differences of procedure and form, and some differences of substance, these prosecutions sufficiently resemble criminal proceedings to make it appropriate to describe decisions taken in relation to them as being decisions which fall within the scope of Sch 2 of the Jurisdiction of Courts Act. It follows that such decisions are outside the range of decisions now amenable to judicial review in this court." [31] The appellants additionally contend that the nature of these prosecutions is akin to contempt proceedings in civil cases which remain essentially criminal in nature: see Witham v Holloway35 where Brennan J (as he then was) and Deane, Toohey and Gaudron JJ noted that proceedings for both civil and criminal contempt must realistically be seen as criminal in nature36 but compare McHugh J.37 [32] Criminal proceedings are generally considered to be taken in respect of offences against public law where the purpose is punishment by the State of a person alleged to have committed an offence: Mallan v Lee.38 Latham CJ there noted that the imposition of a pecuniary penalty as a fine as distinguished from recovery of a penalty as compensation equally shows the legislature intended to punish an act as being criminal.39 [33] In Jago v District Court ( New South Wales),40 Brennan J considered: "… The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in 35 (1994-95) 183 CLR 525. 36 At 534. 37 At 549. 38 (1949-50) 80 CLR 198, 208. 39 At 209. 40 (1989-90) 168 CLR 23, 47. -- 15 of 26 -- 16 conduct which amounts to an offence and, on that account, is deserving of punishment." [34] In Williams v Spautz,41 whilst discussing the law of criminal defamation, Brennan J referred to that passage in Jago noting: "I pointed to the public purpose to be served by criminal proceedings: … That is, punishment at the hands of the State. This approach was taken with reference to criminal defamation by Lord Denning in Goldsmith v Sperrings Ltd [1977] 1 WLR 485: 'A criminal libel is so serious that the offender should be punished for it by the state itself. He should either be sent to prison or made to pay a fine to the state itself. Whereas a civil libel does not come up to that degree of enormity. The wrongdoer has to pay full compensation in money to the person who is libelled and to pay his costs; and he can be ordered not to do it again. But he is not to be sent to prison for it or pay a fine to the state.' " [35] The proceedings in these prosecutions were instituted in the Supreme Court of Queensland and under s 247 Customs Act and s 133 Excise Act have been "commenced, prosecuted and proceeded with … in accordance with the usual practice and procedure of the Court in civil cases". Like Hunt CJ at CL, in Moore v Jack Brabham Holdings Pty Ltd and Comptroller-General v D'Aquino, (Ireland and Dowd JJ agreeing) Kirby P (as he then was) in Jack Brabham Holdings Pty Ltd v Button, Pincus J (as he then was) in Murphy v KRM (with whom Beaumont J agreed) and the Full Court of the Federal Court in Jiang, I am persuaded that despite the procedural implications of s 247 and s 133 these proceedings remain essentially criminal; they are at least "hybrid" or "quasi-criminal" in nature. [36] But that does not make them a "a criminal proceeding" under the Evidence Act 1977. Whilst s 247 Customs Act and s 133 Excise Act do not turn proceedings which are essentially criminal into civil proceedings for all purposes, they allow the usual practice and procedure of the Queensland Supreme Court in civil cases to have application. Evidence is procedural law. Prosecutions under the Customs Act and the Excise Act are not included in the definition of "criminal proceeding" in the Evidence Act 1977; on the other hand, they are not excluded.42 The "usual practice and procedure of the Court in civil cases" involves the application of the provisions of the Evidence Act 1977 which refer to "civil proceedings" or "proceedings" but not ordinarily those provisions which refer to "criminal proceedings". Where s 247 Customs Act or s 133 Excise Act has application to a prosecution "commenced, prosecuted and proceeded with … in accordance with the usual practice and procedure of the Court in civil cases," then the provisions of the Evidence Act 1977 will ordinarily apply as for civil proceedings. These customs and excise prosecutions are therefore not, in my view, criminal proceedings for the purpose of the Evidence Act 1977. 41 (1991-92) 174 CLR 509, 538. 42 cf Commonwealth and New South Wales Evidence Acts. -- 16 of 26 -- 17 [37] It follows that my answers to questions (c) and (d) would be "No". [38] Section 247 Customs Act and s 133 Excise Act also allow the prosecution to proceed "in accordance with the directions of the Court or a Judge". This provision would allow the Court or a Judge where appropriate to give recognition to the essential criminal nature of these "hybrid" or "quasi-criminal" proceedings in order to avoid any injustice which might flow from prosecuting matters which are essentially criminal by way of civil practice, for example, consideration as to whether evidence improperly obtained should be excluded: cf Pearce v Button43 and see Cross on Evidence, Aust ed, Butterworths [11130]. What is the standard of proof in customs and excise prosecutions? [39] I turn now to the standard of proof required to obtain convictions in prosecutions under ss 33, 234(1)(a) and 234(1)(d) Customs Act or ss 61 and 120(1)(iv) Excise Act; it is not submitted that any relevant differences between the sections require a different answer to question (a) or (b) or that the standard of proof is different for different sections under either Act. [40] This question, too, has been the subject of divergent judicial view. It is not answered by the procedural provisions in s 247 Customs Act or s 133 Excise Act allowing the prosecution to be commenced and proceeded with in accordance with the usual practice and procedure of the Court in civil cases; the offences retain their criminal or at least quasi-criminal nature. [41] The classic statement of the onus of proof in criminal cases was set out by Viscount Sankey LC in Woolmington v Director of Public Prosecutions:44 "Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception." [my emphasis] [42] These principles were affirmed by the High Court in May v O'Sullivan:45 "Unless there is some special statutory provision on the subject, … the onus of proof … rests on the prosecution from beginning to end." [my emphasis] [43] The standard of proof has not been generally altered by any clear statutory provision in the Customs Act or the Excise Act although the onus has been altered in some clear and specific instances: see ss 33(1) and 233B(1A) Customs Act and s 15D Crimes Act 1914 (Cth). [44] In Scott v Geoghegan & Sons Pty Ltd,46 a customs prosecution commenced in a Court of Petty Sessions, Taylor J applied the criminal standard of proof beyond reasonable doubt. 43 (1985) 60 ALR 537, 551-553. 44 [1935] AC 462, 481. 45 (1954-55) 92 CLR 654, 658. 46 (1969) 43 ALJR 243. -- 17 of 26 -- 18 [45] In Charlton v Rogers; Ex parte Charlton,47 the respondent was prosecuted for customs offences under Part XIII Customs Act in the Queensland Magistrates Court. The prosecution relied on averments under s 255, which, like s 245 is contained in Part XIV of the Act (Customs prosecutions). On appeal to the Court of Criminal Appeal, Ryan J, with whom Kelly SPJ and Derrington J agreed, noted:48 "There is nothing in s 255 of the Customs Act which affects the principle that the burden rests upon the prosecutor of proving a respondent's guilt beyond reasonable doubt. The fact that the prosecution makes out a prima facie case does not throw the onus of proof on the respondent." [46] Summary cases have been distinguished from cases like these commenced in a State District or Supreme Court on the basis that whilst the criminal standard of proof there applies,49 the civil standard applies to proceedings brought under s 247 Customs Act in a State Supreme or District Court: see Minister v Evans50 and cf Comptroller-General of Customs v D'Aquino Brothers.51 Such a distinction seems both artificial and unjust and is not one I am lightly prepared to accept. [47] Carruthers J, in Minister v Evans, commented that the onus of proof was not important because of the view he had taken of the case but nevertheless observed: "… it has been authoritatively established that proceedings under s 245 are not criminal in nature. They have been clearly categorised by high authority as civil proceedings. It seems inappropriate, therefore, that the criminal standard of proof should be applicable to them."52 [48] Carruthers J's decision in convicting the defendant was upheld on appeal: see Evans v Button.53 [49] In Hayes v Bondaletoff,54 de Jersey J (as he then was) followed Carruthers J's view: "All parties before me submitted that the proceeding was civil in character and not criminal, and that the plaintiff bore the onus of proof to the civil standard on the balance of probabilities. That submission is correct. Of course, being asked to determine whether or not offences have been committed, I must examine the quality of the evidence with great care and caution; one clearly would not for example convict the defendants of these offences on what Dixon J described in Briginshaw v Briginshaw (1938) 60 CLR 336, 362 as 'inexact proofs, indefinite testimony, or indirect references'. But the standard of proof remains on the balance of probabilities. On these 47 (1985-86) 20 ACrimR 238. 48 At 240. 49 Section 245(3) Customs Act and s 134(3) Excise Act were repealed in 1989; those subsections applied different procedure to proceedings commenced in the Magistrates Court. See also s 248 Customs Act. 50 (1984) 54 ALR 128, 152-153. 51 (1996) 135 ALR 649, 661. 52 (1984) 54 ALR 128, 153. 53 [1988] 13 NSWLR 57. 54 [1986] 1 QdR 455, 455-56. -- 18 of 26 -- 19 aspects, reference might usefully be made to McGovern v Hillman Tobacco Pty Ltd (1949) 4 AITR 272, 275, Jackson v Butterworth [1946] VLR 330, 323-3 and Button v Evans [1984] 2 NSWLR 338." [50] As has been noted, Hunt J (as he then was) in Moore v Jack Brabham Holdings Pty Ltd55 rejected the reasoning of Carruthers J, at least as to offences against the Customs Act prior to 1982 when the Act provided for direct imprisonment where a defendant had been previously convicted of a similar offence. Hunt J thought it unnecessary to consider the burden of proof but noted, with apparent approval, Taylor J's comments in Scott v Geoghegan & Sons Pty Ltd.56 [51] In D'Aquino Brothers,57 Hunt CJ at CL noted that:58 "It has never been determined authoritatively (that is, at a level higher than a first instance judge) as to whether the onus of proof is to be discharged in accordance with the criminal or the civil standard, although the preponderant view is that it is the civil standard." Although the New South Wales Court of Appeal did not there decide the question, the court considered the offences were "of a criminal nature",59 a conclusion which supports the application of the criminal standard of proof. [52] In Kelly v Wong,60 the primary judge, Carruthers AJ, considered whether prosecutions under s 233 and s 234 Customs Act were proven. His Honour held that the proceedings were not criminal proceedings for the purposes of the Commonwealth and New South Wales Evidence Acts. His Honour determined that the appropriate standard of proof was the civil standard, as adapted by Briginshaw61 but found that in any case the evidence satisfied him of the defendant's guilt beyond reasonable doubt. [53] The matter was further considered by the New South Wales Court of Appeal in Wong v Kelly. Whilst the actual grounds of appeal are not set out in the judgment, it seems the relevant issue for determination was whether the proceedings were criminal proceedings for the purpose of the Commonwealth and New South Wales Evidence Acts, not the standard of proof. The court commented that "Carruthers A- J was right to … apply the standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336". In circumstances where the primary judge had concluded that the case had been proven beyond reasonable doubt, these comments are arguably obiter, although they are, of course, of considerable weight. [54] The New South Wales Court of Appeal does not appear to have adopted a consistent approach to this vexed question. In the recent case of Chief Executive 55 [1987] 7 NSWLR 470. 56 (1969) 43 ALJR 243. 57 See [28] of these reasons. 58 (1996) 135 ALR, 649, 654. 59 At 661, 672. 60 Unreported, Supreme Court of New South Wales - Common Law Division No 12178 of 1989, 10 July 1998. 61 (1938) 60 CLR 336. -- 19 of 26 -- 20 Officer of Customs v Tony Longo Pty Ltd,62 where the defendants were prosecuted by way of civil procedure, Heydon JA, with whom Mason P and Rolfe AJA agreed, without considering Wong or the authorities cited there, noted: "Sections 33, 233 and 234 (Customs Act 1901 (Cth)) depend on proof of mens rea at the criminal standard of proof."63 [55] The reasoning of Pincus J (as he then was) in Murphy v KRM Holdings Pty Ltd with whom Beaumont J agreed, supports a conclusion that these offences must be proved by the prosecution beyond reasonable doubt.64 [56] The issue for determination in Jiang was not the standard of proof in customs prosecutions but whether they were "related criminal justice process decisions" under the ADJR Act. The court's reasoning in finding that these prosecutions are "related criminal justice process decisions" also supports the conclusion that they are essentially of a criminal nature despite the procedural effect of s 247 and that the standard of proof should, in the absence of clear statutory exception, be proof beyond reasonable doubt. [57] The respondent contends this Court is bound to follow the New South Wales Court of Appeal in Wong v Kelly and to conclude that the standard of proof is the civil standard, in the interests of uniformity of decision in the interpretation of uniform national legislation: Australian Securities Commission v Marlborough Gold Mines Ltd.65 But the review of the authorities set out above demonstrates the absence of any uniform approach by intermediate appellate courts to this question. The matter has not been authoritatively determined by the High Court. [58] As I have earlier noted, there are analogies between prosecutions brought procedurally under s 247 or s 133 and civil contempt proceedings; both remain essentially criminal in nature although they are dealt with as civil proceedings. As Brennan J (as he then was) and Deane, Toohey and Gaudron JJ noted in Witham v Holloway:66 "The differences upon which the distinction between civil and criminal contempt is based, are in significant respects illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt 'must realistically be seen as criminal in nature' ((1987) 164 CLR 15, 49). The consequence is that all charges of contempt must be proved beyond reasonable doubt. 62 [2001] NSWCA 147. 63 [103]. 64 See [27] of these reasons. 65 (1992-93) 177 CLR 485, 492. 66 (1994-95) 183 CLR 525, 534. -- 20 of 26 -- 21 McHugh J was also of the view that: "All civil as well as criminal contempts must be proved beyond reasonable doubt."67 [59] The breach of any of the relevant provisions of the Customs Act and the Excise Act constitutes an "offence" for which a monetary "penalty" is provided. Under s 33(2) Customs Act a person who commits an offence" is punishable on conviction" by a "fine". Subsections 234(3) and (4) Customs Act refer to a person being "convicted of an offence". Subsection 120(2) Excise Act provides that a person who contravenes s 120(1) is "guilty of an offence punishable upon conviction" by a "fine". The proceedings to obtain a conviction for such offences are described as "prosecutions". Prior to 1982, a second "conviction" could lead directly to imprisonment. These prosecutions are brought by the Commonwealth through the CEO of Customs. They are offences against public law and are as serious as similar offences committed upon a private citizen. The penalties and fines to which the offender is liable involve very substantial punishments, not simply the repayment of unpaid duty. Plainly, the object of these penalties and fines is punishment and deterrence. Non-payment of the penalties and fines could result in substantial periods of imprisonment.68 These offences remain essentially criminal in nature. [60] In the absence of any clear statutory provision to the contrary and despite the procedural effect of s 247 and s 133, the criminal standard of proof must therefore apply, that is, the convictions must be proved by the prosecutor beyond reasonable doubt. A general procedural provision such as s 247 Customs Act cannot, in my view, alter the requirement that essentially criminal offences, even "hybrid" or "quasi-criminal offences", must be proved by the prosecution beyond reasonable doubt. [61] It follows that my answers to question (a) and (b) would be "Proof beyond reasonable doubt". Summary [62] I would answer the questions posed by the parties and set out in paragraph [2] of these reasons as follows: (a) Proof beyond reasonable doubt. (b) Proof beyond reasonable doubt. (c) No. (d) No. [63] I would allow the appeal by deleting the primary judge's answers to questions (a) and (b) and instead substituting the answers "the criminal standard of proof" to both questions (a) and (b). I would confirm the answers given to questions (c) and (d) given by the learned primary judge. Costs [64] The primary judge ordered that the costs of the primary proceedings be costs in the cause. The appellants seek an order for the costs of and incidental to those proceedings. The appellants have had substantial success in that two important questions have been answered in their favour on this appeal; they have been 67 Ibid, 545. 68 See CEO of Customs v Labrador Liquor Wholesale Pty Ltd [2000] QSC 171, [91]-[93]. -- 21 of 26 -- 22 unsuccessful as to the remaining two questions. In these circumstances, I would not interfere with the costs order made below, but would order the respondent to pay the appellants' costs of the appeal to be assessed. [65] I propose the following orders: The appeal is allowed. Delete the answers given below to questions (a) and (b) and substitute the answers "proof beyond reasonable doubt" to both those questions. The order of the primary judge is otherwise confirmed. The respondent is to pay the appellants' costs of this appeal to be assessed. [66] THOMAS JA: The issues are stated in the reasons of the President. [67] The following are the questions and the answers given by the learned trial judge. (a) What is the standard of proof required of the plaintiff (respondent) in these customs prosecutions in order for him to obtain convictions for offences against s 33, s 234(1)(a) and s 234(1)(d) of the Customs Act? (a) The civil standard of proof. (b) What is the standard of proof required of the plaintiff (respondent) in these excise prosecutions in order for him to obtain convictions for offences against s 61 and s 120(1)(iv) of the Excise Act? (b) The civil standard of proof. (c) Are these customs prosecutions criminal proceedings for the purposes of the Evidence Act 1977? (c) No. (d) Are these excise prosecutions criminal proceedings for the purposes of the Evidence Act 1977? (d) No. It will be apparent that questions (a) and (b) deal with the question of standard of proof and that (c) and (d) deal with the rules of procedure applicable to the trial of the pending prosecutions of the appellant. Before dealing with these questions it is necessary to say something about the procedure that led to the questions being posed. Declaratory relief [68] At first glance an order seems to have been made in the trial division for answers to be given to hypothetical legal questions. Although the power given by r 483 of the -- 22 of 26 -- 23 Uniform Civil Procedure Rules to make separate decisions on separate questions is a wide one69, generally speaking rulings on such points should be given in the context of factual findings or where such a question actually needs to be answered for the purposes of determining the case, or when some very good practical purpose is served by a premature determination of the point. Attempts to divide cases into discreet parts frequently fail, and some circumspection is necessary within the trial division in acceding to requests of this kind. If the questions raised below (and now here) were confined to the first two questions, the order under r 483 should not have been made, because a determination of such a question might be quite unnecessary. It would not arise unless the court, having heard all the evidence found itself satisfied to some lesser standard than proof beyond reasonable doubt. In such a situation the judge would then rule on the question. However genuine practical difficulties are likely to be resolved by preliminary answers being given to the third and fourth questions. The respondent (prosecutor) will need to prove various facts in relation to cargo that was shipped by containers allegedly containing alcohol and tobacco to various islands in the Pacific which when opened by officials overseas are alleged to have contained only mineral water. The question whether s 92 of the Evidence Act 1977 applies to these proceedings is plainly a question which might properly answered before the calling of witnesses. It seems to me then that questions (c) and (d) were properly isolated, and that as there is at least a broad connection with the additional questions posed in (a) and (b), it was not inappropriate that these questions be asked and answered. Standard of proof [69] It is beyond argument that these proceedings are prosecutions and that their purpose is not simply to recover moneys but to punish offenders. The language of s 233 and s 234 of the Customs Act is the language of “punishment”, “conviction”, “fine” and “convicted of offence”. Notwithstanding the very careful analysis of the authorities by the learned trial judge I do not think that the balance of authority requires this court to hold that the matter is one to which the civil standard of proof applies. There is considerable variation of reasoning to be found in the many decisions in which this question has come up. There is conflict between views expressed on the one hand in the Court of Appeal of New South Wales70 and on the other hand of the Full Court of the Federal Court71 and the New South Wales Court of Criminal Appeal72. I find the reasoning in the latter cases the more convincing. I also note that many of the judgments which support the civil standard were openly hostile to the fiction that they felt bound to adopt namely that revenue offences are in their nature civil. Such reasoning is not as persuasive as the reasoning of Pincus J (with whom Beaumont J agreed) in Murphy v KRM Holdings Pty Ltd73, which I find unanswerable. I also think that the conclusion of the majority in Murphy finds support in Hinch v Attorney-General (Vic)74 and Witham v Holloway75 which place 69 “Question” is defined in r 482 to include a question or issue in a proceeding whether of fact or law and whether raised by pleadings or otherwise. 70 Eg Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology & Commerce (Button) (1988) 94 FLR 278; Evans v Button (1988) 13 NSWLR 57; cf Wong v Kelly, Comptroller General of Customs (1999) 154 FLR 200. 71 Murphy v KRM Holdings Pty Ltd (1985) 8 FCR 349; cf Chief Executive Officer of Customs v Jiang (2001) FCA 145, 1 March 2001. 72 Comptroller General of Customs v D’Aquino Bros Pty Ltd (1996) 135 ALR 649. 73 Above. 74 (1987) 164 CLR 15, 49-50. -- 23 of 26 -- 24 considerable importance upon the objective of punishment in characterising proceedings as criminal. I am satisfied that these are proceedings to which the criminal standard applies and would not be prepared to rule otherwise unless constrained by a clear preponderance of authority or principle. I agree generally with the president’s review of the authorities and with the answers that she proposes to questions (a) and (b). Rules of procedure applicable to the trial [70] The point in which the parties are primarily interested is whether s 92 of the Evidence Act 1977 applies to these proceedings. That section permits documentary evidence to be admitted in certain circumstances to prove facts in issue “in any proceeding (not being a criminal proceeding)”. Counsel for the appellant, Mr T North SC, submitted that the present proceeding is a “criminal proceeding” and that the benefit of s 92 is therefore not available to the respondent plaintiff. That term is defined in the Evidence Act in this way: “‘criminal proceeding’ includes a proceeding wherein a person is charged with a simple offence, and an examination of witnesses in relation to and indictable offence.” [71] That is a definition which gives only one minor inclusionary example. It remains appropriate to give the term “criminal proceeding” its normal meaning. [72] Section 247 of the Customs Act expressly permits prosecutions of the present kind to be conducted “in accordance with the usual practice and procedure of the court in civil cases”. The usual practice and procedure of the court in civil cases in this state calls for application of the Evidence Act 1977. Many provisions in that Act apply to criminal proceedings while others (such as s 92) expressly do not. The question then is whether each of the present prosecutions is a “criminal proceeding” within the meaning of the Evidence Act. If it is, the proper application of the relevant Queensland law for the conduct of civil proceedings expressly excludes the application of s 92. [73] There is no logical reason why a proceeding that is essentially criminal in nature cannot be conducted in accordance with a civil mode of procedure. This was recognised by the majority in Witham v Holloway76. Their Honours observed that “to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences … ” The critical question then is whether this is a criminal proceeding notwithstanding the application of civil practice and procedure. The approach taken in Witham v Holloway suggests that it should be regarded as a criminal proceeding notwithstanding that it may be tried by means of civil procedure. There is to my mind a very great difference between the terms “criminal procedure” and “criminal proceeding”. [74] The question whether a proceeding should be characterised as criminal or civil has arisen in a number of decisions concerned with the subject of extradition, resulting in clear authority that extradition applications are to be regarded as criminal rather than civil. As a general proposition – 75 (1995) 183 CLR 525, 534. 76 Ibid, 534. -- 24 of 26 -- 25 “… if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a ‘criminal cause or matter’… The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter … ”77 [75] A similar view has been taken in this court in Brackenridge v New Zealand78. Obviously extradition proceedings, like those in respect of contempt of court, although characterised as criminal, are determined by procedures other than those usually followed in a criminal trial. [76] I have reached the conclusion that the present proceedings do not lose their character as criminal proceedings notwithstanding that they may be conducted in the civil mode. [77] I mention in passing that I have adverted to the point whether there is any arguable inconsistency between s 247 of the Customs Act and s 92(1) of the Evidence Act 1977 (Queensland). The point was not raised or relied on by either party. As I see it s 247 simply adopts the state system of civil procedure and takes it as it finds it79. This includes the express exclusion in s 92 of certain procedures in relation to criminal proceedings. “Unless a contrary intention appears, it [the Commonwealth Parliament] also takes the State law as it finds it, so far as that law relates to the procedure to be adopted in the court, the practice of the court, and the rules of evidence.”80 I therefore do not think there is any arguable inconsistency. [78] Inconvenient as it may be for the prosecution in this particular matter, the answer to questions (c) and (d) should be ‘yes’. It does not follow that sensible and reasonably economic means of proof are cut off. There are available procedures in criminal proceedings for the reception of evidence by telephone81. [79] However the question of convenience is irrelevant. In my opinion these prosecutions are “criminal proceedings” for the purposes of the Evidence Act. Orders [80] The appeal should be allowed. The answers below should be set aside and replaced with the following: 77 Amand v Home Secretary & Minister of Defence of Royal Netherlands Government [1943] AC 147, 162 per Lord Wright. 78 [2000] 1 Qd R 1. 79 Le Mesurier v Connor (1929) 42 CLR 481, 496, 498; Russell v Russell (1976) 134 CLR 495, 516,535; Brown v The Queen (1986) 160 CLR 171, 198; McMahon v State of Queensland [2000] QCA 483; Appeal No 588 of 2000, 24 November 2000. 80 R v Riley (1940) 40 SR (NSW) 111. 81 Cf Evidence Act s 39R. -- 25 of 26 -- 26 (a) What is the standard of proof required of the plaintiff (respondent) in these customs prosecutions in order for him to obtain convictions for offences against s 33, s 234(1)(a) and s 234(1)(d) of the Customs Act? (a) Proof beyond reasonable doubt. (b) What is the standard of proof required of the plaintiff (respondent) in these excise prosecutions in order for him to obtain convictions for offences against s 61 and s 120(1)(iv) of the Excise Act? (b) Proof beyond reasonable doubt. (c) Are these customs prosecutions criminal proceedings for the purposes of the Evidence Act 1977? (c) Yes. (d) Are these excise prosecutions criminal proceedings for the purposes of the Evidence Act 1977? (d) Yes. The respondent should pay the appellant’s cost of the appeal. [81] BYRNE J: I agree with Thomas JA. ORDERS: The appeal is allowed. Delete the answers given below to questions (a) and (b) and substitute the answer "Proof beyond reasonable doubt" to both. Delete the answers given below to question (c) and (d) and substitute the answer "Yes" to both. Order that the respondent is to pay the appellant's costs of this appeal to be assessed. -- 26 of 26 --