Customs, Chief Executive Officer of v Labrador Liquor Wholesale Pty Ltd & Ors [1999] QSC 384

315BS- SUPREME COURT OF QUEENSLAND CITATION: The Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd ACN 050 406 and Lawrence Eric Wright and Jeffrey Andrew John Bryce PARTIES: THE CHIEF EXECUTIVE OFFICER OF CUSTOMS V LABRADOR LIQUOR \VHOLESALE PTY LTD ACN 050406 AND LA \VRENCE ERIC WRIGHT AND JEFFREY ANDREW JOHN BRYCE FILE NO/S: 904 of 1997 DIVISION: Trial Division DELIVERED ON: 24 December 1999 DELIVERED AT: Brisbane HEARING DATE: 7 October 1999 JUDGE: Douglas J ORDER: Ordered by consent that certain questions be decided by the trial judge before the trial of the proceeding! CATCHWORDS: PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - TRIAL - OTHER MATTERS - whether prosecution under Customs Act 1901 and Excise Act 1901 should be tried by jury - whether certain other questions should be determined prior to triaL r Customs Act 1901 .,.' Evidence Act 1977 Excise Act 1901 Uniform Civil Procedure Rules, IT 402-486, r 472 and r 475 Supreme Court Rules, 0 39 r 4 McDermott v CoWen (1953) 87 CLR 154 -- 1 of 5 -- 2 COUNSEL: Mr T North for the applicants Mr F Redmond for the respondent SOLICITORS: Forde Lawyers for the applicants Australian Government Solicitors for the respondent [I] DOUGLAS J: This is an application by the defendants for the following orders: 1) That this action be tried by jury; 2) That the Court state a case for the opinion of the Court of Appeal with respect to the following questions, and that the action not be set down for trial until such time as those questions have been determined, or alternatively that the following questions be decided by the Court before the trial of this action: r (a) Whether in order to obtain a conviction of: i) The First Defendant; ii) The Second Defendant; iii) The Third Defendant; of an offence contrary to: i) Section 33 of the Customs Act 1901 ("the Customs Act "); ii) Section 234(1)(a) of the Customs Act; iii) Section 234(1)(d) of the Customs Act the Plaintiff must prove that Defendant's commiSSIOn of that offence beyond reasonable doubt; (b) Whether in order to obtain a conviction of: i) The First Defendant; ii) The Second Defendant; iii) The Third Defendant; of any offence contrary to: i) Section 61 of the Excise Act 1901 ("the Excise Act"); ii) Section 120(1)(iv) of the Excise Act; the Plaintiff must prove the Defendant's commission of that offence beyond reasonable doubt; -- 2 of 5 -- ( (c) 3 Whether the standard of proof required of the Chief Executive Officer of Customs in Customs Prosecutions instituted by action in the Supreme Court of Queensland pursuant to s 245 of the Customs Act 1901 is proof beyond reasonable doubt; (d) Whether the standard of proof required of the Chief Executive Officer of Customs in Excise Prosecutions instituted by action in the Supreme Court of Queensland pursuant to s 134 of the Excise Act 1901 is proof beyond reasonable doubt. [2) It is convenient to deal with the question of whether or not the action should be ordered to be tried by jury. (a) The Customs Act No 6 of 1901 created indictable offences (see for example s 231 and s 232). It also created many offences in respect of which pecuniary penalties were imposed. Part XIV of the Act, headed "Customs Prosecutions", provided a means by which customs prosecutions might be instituted and also how those prosecutions might be conducted. Section 247 provided that every customs prosecution in the High Court of Australia, or the Supreme Court of any State, may be comnlenced, .. prosecuted and proceeded with in accordance with any rules of practice established by the court for Crown suits in revenue matters, or in accordance with the usual practice or procedure of the court in civil cases, or in accordance with the directions of the court or ajudge. (b) The Excise Act No 9 of 1901, similarly created offences, both indictable and involving pecuniary penalties. Part XI, "excise prosecutions", dealt . with the institution and prosecution of excise prosecutions in a similar manner to that which had been adopted for customs prosecutions. (c) It was submitted by counsel for the respondent that there being no rules of practice established by the Supreme Court of Queensland for Crowns suits in revenue matters, this case was cpmmenced, prosecuted and proceeded with in accordance with the usual practice or procedure of the court in civil cases, or in accordance with the directions of the supervised case list manager and chamber judges. (d) Neither the applicants nor the respondent requested a trial by jury in their respective pleadings. [3) By Rule 472 of the Uniform Civil Procedure Rules, and its predecessor RSC 0 39 r 4 the defendants were entitled to elect a trial by jury in the defence. There have been various versions of the defence none of which make that election. It was always apparent that the nature of the offences with which the action is concerned were serious and that serious consequences followed if the plaintiff succeeded. It is also the fact that the normal mode of trial in Queensland of a civil issue, or question of fact in a civil action, is by a judge sitting alone. This application is brought pursuant to r 475 which authorises the court to order a trial by jury. Fullagar J r -- 3 of 5 -- 4 when hearing a summons asking for an action to be tried with a jury in McDermott v CoWen (1953) 87 CLR 154 at 157 said: r "The nature of the question involved is such that one can hardly expect much guidance from decided cases. Two things, however, seem clear enough. The first is that with the merits and demerits of trial by jury as a means of determining civil causes, I have nothing whatever to do. Dr Woinarski referred me to the observations of Bankes L.J. and Atkin L.J. (as he then was) in Ford v. Blurton (1922) 38 TLR 801 at pp 803, 804, which are quorted by Lush J in Calcrafl v Londoll General Omnibus Co Ltd (1923) 2 KB 608 at p 612. But, so far as any question of general policy is involved, it is settled for me by the High Court Procedure Act. Trial without a jury is the normal mode of trial of actions in this Court, and some special ( reason must be shown for a departure in any particular case from that normal mode. The second thing that seems clear is that it is not enough to show that the cause of action is of a kind which could quite properly be tried with ajury and which was nom1ally tried with a jury in England before the Judicature Act (1873) (36 and 37 Vic c 66). The decisions of Hodges J and of Isaacs J perhaps suggest that the nature of the cause of action is not even a relevant consideration. I would not be prepared to assent to that as a general proposition> indeed I would rather have thought that it might in some cases be a potent consideration. But it is clear that it is not enough to say: "This is a kind of action which is quite suitable for trial with a jury, and I would like to have it tried with a jury." The plaintiff in this case cannot, in my opinion, say more than that. It seems to me that it is a complete answer to him for the defendant to say: "This is a kind I of action which is also quite suitable for trial without a jury".,_ J [4] In my respectful view that dicta of Fullagar J is equally applicable here. I am of the view that this is the kind of action which is settled for trial without a jury. In the exercise of my discretion under r 475 I do not accede to the applicant's request for an order that this action be tried by jury. [5] The balance of the application raises some quite important questions with respect to whether the proceedings require the criminal standard of proof and whether each of the Customs and Excise prosecutions are criminal proceedings for the purposes of the Evidence Act. The applicant by its application sought an order that I state a case for the opinion of the Court of Appeal with respect to the questions set out in paragraphs 2(a), (b), (c) and (d) of the application. At the hearing of this matter in Chambers I indicaJed that I would not accede to making such an order but that the parties should go through the procedure of having the matter determined by a single judge in the ordinary way, and then decide whether to appeal from that decision. [6] The only question remaining is whether or not I should order that those questions be determined prior to the trial of the actions. By IT 402-486 of the UCPR a mechanism is provided for the determination of questions separately from other questions whether before, at, or after the trial or a continuation of the trial of the procee~ings. -- 4 of 5 -- 5 [7] It was submitted to me that the trial will be set down for a period of at least 3 weeks and that if it proceeds upon an erroneous determination, as to the standard of proof and as to the question as to whether it is a civil or criminal proceeding for the purposes of the Evidence Act, there is a very real prospect that there might then be a retrial. It is further submitted that for that reason alone a preliminary determination of these issues should be had. [8] In my view it is appropriate that the issues raised by paragraph 2 of the application should be determined prior to the trial of the proceedings. However, in my view, they ought be decided by the same judge who will eventually hear the trial of the action. In the event of that being my view the parties prepared a consent order as follows, which I make: By consent the order of the court is that: 1. The following questions be decided by the trial judge before the trial of the proceeding: a. What is the standard of proof required of the plaintiff in these customs prosecutions in order for him to obtain convictions for offences against s 33, 234(1)(a) and 234(1)(d) of the Customs Act? __ . b. What is the standard of proof required of the plaintiff in these excise prosecutions in order for him to obtain convictions for offences against s 61 and 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 Act 1977? [9] I shall hear submissions as to costs. r -- 5 of 5 --