Chief Executive Officer of Customs v Carman [2004] QDC 433

DISTRICT COURT OF QUEENSLAND CITATION: Chief Executive Officer of Customs v Carman [2004] QDC 433 PARTIES: CHIEF EXECUTIVE OFFICER OF CUSTOMS Appellant v GRAHAM DOUGLAS CARMAN Respondent FILE NO/S: Appeals 4350/2003, 336/2004 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 2 November 2004 DELIVERED AT: Brisbane HEARING DATE: 9 August 2004 JUDGE: McGill DCJ ORDER: Appeal dismissed with costs. Cross-appeal allowed with costs, order appellant to pay the costs of the prosecution fixed at $1,500. CATCHWORDS: CUSTOMS AND EXCISE – Customs prosecutions – prohibited imports – whether publications promote, incite or instruct in matters of crime or violence. Customs (Prohibited Imports) Regulations 1956 s 4A(1)(d). Brown v Classification Review Board (1998) 82 FCR 225 – applied. COUNSEL: J A Logan SC and K A Mellifont for the appellant D P O’Gorman for the respondent SOLICITORS: Australian Government Solicitor for the appellant M S Kelly and Co for the respondent [1] The respondent was charged on two complaints with unlawfully importing prohibited imports, contrary to s 233 of the Customs Act 2001. When the matter came on for hearing a magistrate found that there was no case to answer and dismissed the complaints. The appellant has appealed against that decision under s 222 of the Justices Act, alleging that the magistrate erred in finding there was no case to answer. The respondent has also appealed against the magistrate’s refusal to make an order for costs in his favour following the dismissal of the charges. -- 1 of 8 -- 2 [2] There was no dispute that the respondent imported and possessed the publications which were the subject of the charges. The matter at issue was whether the relevant publications, instruction manuals on weapons construction, an instructional video on weapons construction, and advertising material, were prohibited imports pursuant to regulation 4A(1)(d) of the Customs (Prohibited Imports) Regulation 1956. [3] Regulation 4A(1) relevantly provides: “(1) This regulation applies to publications and any other goods that: … (d) promote, incite or instruct in matters of crime or violence …” Sub-regulation (2) prohibits the importation of such goods unless the Attorney- General has granted permission in writing. It was not asserted that such permission had been obtained in the present case, and there is no dispute that the relevant items were publications for the purposes of this regulation. The issue was therefore whether the publications are ones that “promote, incite or instruct in matters of crime or violence.” Authority [4] It was agreed by both parties that the authoritative interpretation of that phrase was to be found in the decision of the Full Federal Court in Brown v Classification Review Board (1998) 82 FCR 225. That decision concerned the Classification of Publications Ordinance of the Australian Capital Territory. Relevantly that ordinance required a classification officer to refuse to classify a publication “that promotes, incites or instructs in matters of crime or violence.” A classification officer had refused to classify a publication edited by the appellants; that had the effect of prohibiting its distribution. The decision was confirmed by the Classification Review Board and an application for judicial review was dismissed at first instance, and on appeal to the Full Federal Court. [5] French J at p.239 said of the relevant phrase: “The phrase ‘promote, incite or instruct’ is a collocation of overlapping meanings. According to the Shorter Oxford English Dictionary, to promote is to further the growth, development, progress or establishment of (anything); to further advance, encourage. To incite is to urge or spur on; to stir up, instigate, stimulate. To instruct is relevantly to furnish with knowledge or information; to teach or educate. The word ‘instruct’ does not have to be construed in a way which excludes all elements of promotion or incitement. … Consistently with the principle of freedom of expression recognised by the code itself, it must appear from the publication in question that it goes beyond the mere provision of information about crime and teaches or educates in matters of crime. Reflecting the theme of promotion or incitement the provision of information on matters of crime will constitute instruction if it appears from the content and context of the article, objectively assessed, as purposive, the relevant purpose being to encourage and equip people with the information to commit crimes.” At p.240 his Honour added that the word “instruct” would not apply to a publication which merely informed on matters of crime. The test was objective, and the publication must be read as a whole and in context. -- 2 of 8 -- 3 [6] Heerey J at p.242 agreed that the test was objective, and that in the relevant context “instructs” was to be read as connoting “some element of encouraging or extorting the commission of crime” as well as the mere provision of knowledge, skills and techniques as to how crime may be committed. Sundberg J at p.257 said: “In my view ‘instruct in matters of crime’ involves two elements: first, furnishing readers with information as to how crime can be committed, and secondly, encouraging them to use that information to commit crime. The mere furnishing of information as to how to commit crime is not sufficient. If it were, a newspaper report about how a bank was broken into and robbed might instruct in matters of crime. That could not have been parliament’s intention. The reader must as well be encouraged to use the information. … The test is an objective one. …” [7] In that case there is no doubt that the article in question did more than provide information about shoplifting. The introductory words, in heavy print, included: “Shoplifting is an art that deserves the widest possible dissemination. For your convenience we have printed below a step-by-step guide to shoplifting. Good luck.” It went on to provide a philosophical justification for shoplifting. It was not difficult to characterise the article was providing encouragement as well as information. But the considerations which justified the imposition of the requirement of encouragement as well as information in the context applicable there, bearing in mind that the relevant statutory provisions operated as a restriction on freedom of speech and freedom to read, apply equally to the slightly different but parallel context of restrictions on importation. The argument that the legislation could not have been intended to apply to matters such as a newspaper report which provided some information as to how a crime was committed, or for that matter an instruction manual on shoplifting techniques for use in the training of police or security staff in department stores, applies equally in the present context; it is inconceivable that either of these examples was intended to be caught up in a prohibition on importation in this part of this regulation. Instruction manuals [8] There is no doubt that the instruction manuals on weapons construction and the instructional video provide information. The crucial question therefore is whether they also satisfy the second limb of the test in Brown, encouraging persons to whom the information is provided to commit crime. [9] Obviously there are many crimes which can be committed with the use of firearms, including firearms one has built oneself. But the appellant relied rather on the proposition that mere possession of a firearm which one had built oneself would ordinarily be an offence, particularly the kind of firearm that was described in the publications, which would seem to be a semi-automatic firearm. It would certainly be unlawful for most people to act on and follow these instructions and create an operating semi-automatic firearm, although I suppose someone who happened to be a licensed gunsmith would be able to do so without committing an offence. Counsel for the appellant submitted however that the style of the publication was not directed to a person with the degree of expertise one would expect to find in a licensed gunsmith, but was rather directed to an inexpert person. [10] Certainly the publications are intended to be, or at least intended to appear to be, a comprehensive guide providing all the information that an inexpert person would require in order to construct a firearm from various parts which one might expect to -- 3 of 8 -- 4 be commercially available; I have not read all of the printed manuals in detail, but I did watch all of the instructional video which was one of the relevant items, and it did occur to me that substantial parts of the construction process were rather glossed over in that video. Nevertheless, the crucial question remains whether the publications actually encourage people to use the information to commit a crime, that is to say, actually to build the weapons that supposedly can be created by following the instructions. [11] Counsel for the appellant referred to a passage on page 7 of the manual entitled “Home Workshop Guns for Defence and Resistance” which stated: “Please note that the suppliers listed here were in business at the addresses listed when this book was published, and since they are all stable companies I assume that they still are. Please don’t complain to me or the publisher if this has changed.” It was submitted that this assumed that the reader would undertake the task of construction. I do not think that is necessarily so, although it may well assume that the reader would at least lay in a supply of the raw material required to undertake the task of construction. But it seems to me that this passage does not actually encourage readers to take that step. [12] Reference was also made to a statement on p.49 of that publication: “To avoid future problems with federal agents, it might be a good idea to remove the bayonet lug before finishing.” Again that assumes that the reader will undertake the task of construction, but in my opinion does not actually encourage the reader to do so. [13] Finally reference was made to the conclusion of the book, which contains a discussion as to what would or would not be illegal in the United States of America. This is of no direct relevance to Australia, but generally might stand as a reminder that following the instructions in the book may well result in the production of something the possession of which would be an offence. Although there may be some people who would treat that as encouragement, in my opinion it does not amount objectively to encouragement to take that step; if anything it provides some discouragement from following the instructions provided in the book, at least so long as the current laws prevail. [14] Laws, and indeed circumstances, may change, as is recognised by one paragraph in this section: “If the time should come, however, when you simply must have a weapon such as this for survival or defence, then it isn’t going to make much difference what is legal and what isn’t. Until that time comes, however, I suggest that you simply practise making parts. And maybe store some away to use in the future – although even that may be considered illegal by some. Do so at your own risk.” The point being made there is that circumstances may arise where legislative restrictions on things such as the possession of firearms may become irrelevant. To some extent this is a reflection of doomsday attitudes predicting the collapse of civilisation and descent into anarchy, ideas which have some popular currency in some quarters.1 I suppose if society did collapse into anarchy having an instruction manual on the construction of a firearm may well be the next best thing to having an actual firearm, although in both cases one would no doubt face the problem of obtaining ammunition. I suspect that there would be other practical difficulties, 1 Including popular literature: see eg L Niven and J Pournelle “Lucifer’s Hammer” (Orbit Books, 1978). -- 4 of 8 -- 5 such as obtaining raw materials, and various tools, including lathes and associated pieces of equipment, to say nothing of the electricity to drive the lathes. [15] Even if one does not envisage such a dire future, statutes come and go. However politically unfashionable firearms may be at the moment, there was a time when attitudes were very different, and in the future attitudes may be different again. Having this information does not necessarily mean that one is going to use it now. The person in possession may merely be obtaining it so as to have it available if it could be lawfully applied, or in circumstance where legislative restrictions had become irrelevant. Rather than amounting to an incitement to commit a crime it seems to me that this conclusion, read objectively, is if anything tending to do the opposite, by providing some warning of the fact that there may well be legislative prohibitions on actually following these instructions. There is a similar warning on the videotape, that “care should be taken that no local, state or federal laws are being violated.” It was submitted on behalf of the appellant that there was an element of disingenuousness in this warning, but when one is applying an objective test I consider such statements should be taken at face value. [16] There were some other passages referred to in oral argument, but they really do not take the matter any further. Like these passages, they are written on the assumption that the instructions will be followed, but do not when read objectively provide any encouragement to take that course. Some of them by alluding to possible illegality might provide a sort of perverse encouragement, but only to those who are disposed to break the law anyway. As I have said, I do not think that that amounts to encouragement in an objective sense. I do not think, for example, that a notice in a train warning of a penalty for misuse of the emergency stop cord would be regarded objectively as an encouragement to pull the cord, even though it might in practice have that effect on some people. [17] In my opinion, applying the test laid down by the Full Federal Court in Brown, none of the instructional publications promote, incite or instruct in matters of crime or violence; or at least it would not be open for a tribunal of fact to be satisfied beyond reasonable doubt that they did. For these publications in my opinion the magistrate was correct to find that there was no case to answer. Advertisements [18] The other publications relied on were allegedly prohibited because they contained advertisements for other publications which it was said facilitated the commission of criminal offences. Reference was made to the forging of documents designed to support a false identity, drug smuggling, the theft of cable or satellite television programming, home firearm construction, and knife assassination techniques. It was said that the wording of these advertisements provided encouragement for the purchase of the publications in terms which amounted to encouragement to use the information supposedly provided by those publications in order to commit a crime. At this stage, I am content to assume that these advertisements are cast in terms which would satisfy the second limb of the Federal Court test of instructing in matters of crime, although it does seem to me frankly that many of the advertisements relied on appear to be directed to responding to a market which does not require further encouragement, rather than actually providing encouragement in themselves. But the problem with the appellant’s argument in relation to these advertisements, and hence the publication containing them, is that there is nothing -- 5 of 8 -- 6 in them which satisfies the first element, that is to say provides readers with information as to how crime can be committed. [19] There is no information in the advertisements as to how crime can be committed, although the advertisements assert that the publications offered in them contain that information. There is of course no evidence that that assertion was true; there is no evidence of what one would in fact have obtained, if anything, if one had responded to any of these advertisements. For that reason it is not possible to know that the publication advertised would itself be a prohibited import, so that the advertisement was instructing in matters of crime in the sense that it was providing information and encouragement in relation to the crime of importing prohibited imports. In any case, that was not the basis of the appellant’s argument. I do not consider that a publication instructs in matters of crime when it merely provides information as to how one may go about obtaining instruction in matters of crime. I do not consider that any prohibition of this nature should be extended any wider than the ordinary meaning the words necessarily convey; that is consistent with the approach to interpretation adopted in Brown. [20] In the alternative it was submitted that the publications carrying these advertisements by these advertisements promoted matters of crime or violence. As pointed out by French J at p.239 in Brown, “To promote is to further the growth, development, progress or establishment of (anything); to further advance, encourage.” In my opinion there is a distinction between promoting crime or violence, and aiding in the commission of crime or violence, and it may be significant that the word “aiding” does not appear in the regulation. In my opinion before a publication can be said to promote crime or violence it is necessary for it to do more than merely aid a person who is otherwise disposed towards crime or violence. It is necessary to encourage a disposition towards crime or violence in someone who does not otherwise have one, or to magnify a pre-existing disposition. [21] This requires consideration of the issue which I previously assumed in favour of the appellant for the purposes of determining whether the publication instructed in the relevant sense. But after further consideration, in my opinion this material does not encourage people who would otherwise not be disposed to do so to engage in crime or violence, or provide further encouragement (as distinct from assistance) to those who are disposed to do so. The fact that someone who was already disposed to use the information for the purpose of crime or violence might be assisted in doing so by following instructions contained in the publications advertised in these advertisements (as to which there is no evidence) is not in my opinion relevant, or at least, that is not sufficient for it to be said that the advertisements themselves promote crime or violence. These advertisements may be promoting the publications advertised, but they are not themselves promoting crime or violence. [22] In my opinion the magistrate correctly concluded that a tribunal of fact could not on the evidence be satisfied beyond reasonable doubt that the presence of these advertisements rendered the publication containing them one which was prohibited on the ground that it promoted, incited or instructed in mattes of crime or violence, and the magistrate properly concluded that there was no case to answer. [23] It was necessary for the prosecution at the hearing before the magistrate to prove beyond reasonable doubt that the goods were prohibited imports, that is, to prove beyond reasonable doubt that the relevant items were publications which would -- 6 of 8 -- 7 “promote, incite or instruct in matters of crime or violence.” The magistrate concluded that there was no case to answer in relation to that element of the offence. In my opinion that conclusion was correct, and the appeal should be dismissed with costs. Cross appeal [24] Under s 158 of the Justices Act there is a discretion to order the complainant to pay the defendant’s costs if a complaint is dismissed. There is however some restriction on that discretion in the case of a complaint made by a public officer, which would include the appellant. In addition the amount of costs is limited by a scale set out in the regulation: s 158B. [25] Subsection 158A(2) lists a series of factors which must be taken into account. Dealing with those, there is no reason to doubt that the proceeding was brought and continued in good faith, there was no failure to take appropriate steps to investigate the matter, nor was the investigation in any way inappropriate, there was nothing in my view particularly to suggest that the defendant brought suspicion on himself by conduct engaged in after the relevant events, or that the defendant has unreasonably declined an opportunity to explain his version or to produce evidence in a way which would have avoided the prosecution, or that there was any failure to comply with a direction under s 183A. The defence was not conducted unreasonably, and the defendant was not convicted of a different charge. As to whether the dismissal was on technical grounds, although in a sense the issue in the present case was technical, that I think is not what is spoken of in paragraph (d); the real issue in this case was whether or not the goods in question were publications the importation of which was prohibited under the regulation. That, although a technical issue, was the crucial element in the prosecution. Insofar as it is apparent that the publications in question were not in breach of the regulation, that ought to have been just as apparent to the complainant before the prosecution was brought. It may be that the prosecution was brought in order to test whether publications of this nature are within the regulation; if so, that is not a reason for denying costs to a successful defendant. [26] The magistrate referred to the fact that the prosecution had not been badly prepared, and that the publications in his view deserved consideration in the courts. He did not think the prosecution was “out of order” in bring the prosecution. On that basis in the exercise of his discretion he declined to order costs. [27] The fact that the prosecutor acted in good faith in the public interest is not a ground for depriving the successful defendant of his costs: Latoudis v Casey (1990) 170 CLR 534 at 569. Costs are not awarded as a penalty, and therefore an order for costs should not be withheld unless there is some conduct on the part of the prosecution deserving punishment. To approach the matter on that basis reflects a fundamental misconception as to the correct approach to the exercise of the discretion. The starting point is that an order for costs should be made in favour of the successful defendant unless there is some good reason not to do so: Latoudis v Casey (supra). [28] In relation to the cross-appeal, the appellant’s position was that, if the appeal was dismissed, the appellant neither consented to nor opposed the cross-appeal as to costs. In my opinion the magistrate’s discretion in relation to costs miscarried, by -- 7 of 8 -- 8 focusing on the absence of fault on the part of the prosecution. The real point is that there was nothing in the conduct of the respondent defendant which would disentitle him to an order for costs. In these circumstances, the approach of the magistrate to the exercise of the discretion involved an error of law, and accordingly the discretion should be exercised afresh. In my opinion there is no sufficient reason to depart from the general position that an order for costs should be made in favour of a successful defendant. [29] I therefore allow the cross-appeal and set aside the magistrate’s order in relation to costs, and in lieu thereof order that the complainant pay the defendant’s costs fixed in the sum of $1,500. I order the appellant to pay the respondent’s costs of the cross-appeal to be assessed. -- 8 of 8 --