Powell v Chief Executive Officer of Australian Customs Service
[2016] QCA 313
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Powell v Chief Executive Officer of Australian Customs Service[2016] QCA 313
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Powell v Chief Executive Officer of Australian Customs Service[2016] QCA 313
Powell v Chief Executive Officer of Australian Customs Service[2016] QCA 313
SUPREME COURT OF QUEENSLAND
CITATION: | Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313 |
PARTIES: | POWELL, Timothy Ian Charles |
FILE NO/S: | CA No 61 of 2015 CA No 113 of 2015 DC No 2068 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2015] QDC 48; [2015] QDC 97 |
DELIVERED ON: | 25 November 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 August 2016 |
JUDGES: | Gotterson and Philip McMurdo JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where the applicant was convicted after trial in the Magistrates Court of importing a prohibited part of a firearm – where the Chief Magistrate was satisfied that the applicant held an honest and reasonable belief that the subject part was not prohibited, imposed a recognisance and discharged the applicant with no conviction recorded – where the respondent appealed against the sentence to the District Court – where the District Court judge characterised the nature of the appeal as one in which the judge could decide the proper inferences to be drawn from the uncontested facts before the Chief Magistrate – where the judge reviewed the evidence, reached a different conclusion as to the applicant’s state of mind, set aside the order and resentenced the applicant, but did not identify any error in the Chief Magistrate’s reasoning – where the applicant contends the District Court judge gave insufficient weight to the Chief Magistrate’s factual findings – whether the District Court judge erred in the exercise of the court’s appellate function – whether it was open to the District Court judge to reach a different factual conclusion without identifying any error in the reasoning of the Chief Magistrate District Court of Queensland Act 1967 (Qld), s 118(2), s 118(3), s 118(8), s 119 Justices Act 1886 (Qld), s 222 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited Burke v Commissioner of Police [2016] QCA 184, considered Chief Executive Officer of Customs v Powell [2015] QDC 48, overruled Chief Executive Officer of Customs v Powell [2015] QDC 97, overruled Commissioner of Police v Stehbens [2013] QCA 81, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, considered Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141, cited Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, cited Powell v Chief Executive Officer of Customs [2011] QDC 272, related Powell v Chief Executive Officer of Customs (2012) 272 FLR 5; [2012] QCA 338, related R v Ruthven [2013] QCA 142, cited Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited Tsigounis v Medical Board of Queensland [2006] QCA 295, considered Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited White v Commissioner of Police [2014] QCA 121, cited |
COUNSEL: | The applicant appeared on his own behalf M J Byrne QC, with C K Copley, for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Australian Government Solicitor for the respondent |
- GOTTERSON JA: I agree with the orders proposed by Philip McMurdo JA and, subject to one reservation, with his Honour’s reasons for them. The reservation I have concerns his Honour’s conclusion that the view expressed in Burke v Commissioner of Police[1] is to be preferred to that expressed in the earlier cases mentioned by his Honour.
- In my view, the identified error on the part of the District Court judge who heard the appeal in misapprehending the approach to be taken to the appeal and, in consequence, in failing to analyse the reasoning of the Chief Magistrate in accepting the applicant’s evidence, is clearly an error of law. Each of the views as to the types of appeals for which leave may be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld) discussed by his Honour, includes an error of law. Thus, under either view, this appeal is eligible for a grant of leave to appeal to this Court.
- It is therefore unnecessary, in my view, to express a preference for one view over the other. Moreover, I would prefer not to do so in the absence of argument on the issue.
- PHILIP McMURDO JA: After a trial in the Magistrates Court, the applicant was convicted of importing a prohibited item, namely a part for a firearm, contrary to s 233(1)(b) of the Customs Act 1901 (Cth). An appeal to the District Court against that conviction was dismissed[2] and this court refused his application for leave to appeal against the District Court’s judgment.[3]
- The case returned to the Magistrates Court for the applicant to be sentenced. The then Chief Magistrate was persuaded to apply s 19B of the Crimes Act 1914 (Cth) and ordered that the applicant be discharged without a conviction upon his giving a recognisance of $1,000 that he be of good behaviour for two years. In order to apply s 19B in this case, the Chief Magistrate had to be satisfied that the offence was committed under extenuating circumstances and that it was inexpedient to inflict any punishment.[4] His Honour found that the applicant imported the item under an honest and reasonable belief that it was not a prohibited import and that this fact, considered with other circumstances, permitted and warranted the application of s 19B.
- In challenging his conviction, the applicant had unsuccessfully argued that he was innocent of the charge on the basis of that same mistake. Discussing that argument in this court, Henry J characterised it as a mistake of law[5] and therefore not a mistake which affected his conviction.[6] But until the applicant was sentenced by the Chief Magistrate, there had been no finding as to whether the applicant had acted under this mistake.
- The present respondent appealed against the sentence to the District Court under s 222 of the Justices Act 1886 (Qld). In a reserved judgment, the court allowed the appeal and set aside the order made by the Chief Magistrate.[7] In a subsequent judgment, the same judge convicted the applicant and fined him the sum of $6,000 to be paid within two years, and ordered him to pay the costs of the appeal.[8] Her Honour set aside the order of the Chief Magistrate essentially because she disagreed with his finding that the applicant had acted under an honest and reasonable mistake of his entitlement to import the item. In her Honour’s view, the applicant had no more than a belief that he had an arguable basis for an entitlement to import the item. Therefore, she reasoned, there were not extenuating circumstances and there was no basis for the operation of s 19B.
- The applicant applies to this court for leave to appeal against the decision of the District Court. Leave to appeal is required, because this would be an appeal against a judgment of the District Court in its appellate jurisdiction.[9]
- For the reasons that follow, in my respectful view the District Court made an error in reversing the Chief Magistrate’s finding of an honest and reasonable mistake. That conclusion was reached by an incorrect characterisation of the reasoning by which the Chief Magistrate had made the critical factual finding and without the required consideration of whether that reasoning was erroneous.
The evidence in the Magistrates Court
- Before the Chief Magistrate, the applicant gave evidence in the form of an affidavit which he had affirmed in 2011 and upon which he had relied in the District Court when appealing his conviction. In that affidavit he set out the history of his importation of parts of firearms, one of which had resulted in a previous offence. Beginning in 1999 he had also engaged in extensive correspondence with the Australian Customs Service (ACS) as to what could or could not be imported for items of this kind.
- In 2001, the applicant asked the ACS whether a permit was required to import “minor firearm component parts … such as sights, that had been removed from a firearm receiver by cutting, and where the minor firearm component parts were still attached to a cut section of a firearm receiver.” He received a written response that sights which had been removed from a receiver by cutting did not require a permit. The applicant said that in December 2001, he was told at a meeting with ACS officers that they were “not interested in pieces of receivers … [but] only … complete receivers.” After receiving that advice, he began importing parts and, more specifically, trunions which had sections of firearm receivers attached to them. These items were at first detained by the ACS upon their arrival in Australia, but were subsequently released to the applicant with advice from the ACS that a permit had not been required for them.
- In about July 2002, the applicant imported parts which were attached to four cut sections of receivers from Uzi firearms (the applicant was then in lawful possession of an Uzi firearm). These items were detained by the ACS upon their arrival in Australia. The applicant lodged a written complaint which resulted in several meetings in late 2002 with officers of the ACS. The outcome was that the applicant was permitted to return the items to their supplier in the United States.
- In December 2002, the applicant imported two cut sections of receivers from two AKM machine gun receivers. He believed that no permit was required because they did not fall within the definition of a “firearm part” as defined under the relevant regulation.[10] These items were detained by the ACS upon their arrival in Australia before being sent to the Australian Federal Police for examination. In January 2003, the ACS wrote to the applicant, advising him that the items did not require a permit for importation and that they could be collected by him. When the applicant collected them, he signed a receipt which recorded that the items were “2 x demilled metal parts (probable part receivers) … not requiring permit see AFP reports”. The applicant exhibited to his affidavit a copy of that receipt as well as photographs of these items, which I will call the AKM parts.
- In December 2004, after a trial in the Magistrates Court, the applicant was convicted of an offence of importing a breech bolt without a permit.
- In 2005, the applicant began directing enquiries to the ACS in Canberra as to whether permits were required for certain other items. He said that the enquiries were directed to Canberra and not the ACS in Brisbane because of his experience of inconsistent responses from that office. The applicant said that he “wanted to be absolutely certain that information I received in the future from the ACS regarding firearms related importations was 100% accurate and correct.”
- In late 2005, the applicant advertised on an American based internet site for a “demilled rear section of a lower receiver to suit an M16 or AKR15 type firearm”. The applicant’s evidence was that the term “demilled” was an abbreviation for “demilitarized” which “was used in the USA firearms industry for describing firearms receivers that had been permanently destroyed” and that the ACS had used the term in the same sense. The applicant was contacted by a seller and the applicant arranged for the part to be sent to a Mr Rufus Murray, an authorised firearm trader in the United States. At the same time, the applicant had purchased two firearms in the United States, being a revolver and a receiver and those items were also sent to Mr Murray. The applicant obtained a necessary approval from the Queensland Police Service for those two firearms, which were at first detained by the ACS before being released to the applicant. It was the other item which had been sent to Mr Murray, the rear section of a receiver, which became the subject of the present offence.
- In his affidavit, the applicant said that he was advised by Mr Murray that the item was “demilled”. The applicant instructed Mr Murray to remove the shoulder butt stock assembly which had been attached to the item as the applicant believed that the assembly may have been a firearm accessory as defined in the relevant regulation.
- At about this time the applicant was again corresponding with the ACS and it is this correspondence which the District Court judge held to be critical to the question of the applicant’s belief as to his entitlement. On 13 January 2006, the applicant emailed Mr Belford of the ACS asking whether certain parts required a permit to be imported. The subject item was not one of them. They were a Browning machine gun butt stock and a Browning machine gun barrel shroud. He attached photographs of the items. He also put this question to Mr Belford:
“Can you also confirm that you are actually seeking expert advice from the Australian Federal Police … on my recent enquiries, and the AFP have the final say on what requires a permit to import, and what does not require a permit to import, or is it you/your department that are making the decisions?”
Mr Belford replied that the two items were not considered to be prohibited imports and did not require a permit. As to the applicant’s other question, Mr Belford answered:
“In response to your specific question on the department that decides permit requirements, Customs remain the authority for determination of Customs (Prohibited Imports) Regulations 1956, with the AFP as our prime technical advice agency. Should you have any further questions please do not hesitate to contact me.”
- On 19 January 2006, the applicant instructed Mr Murray to send the subject item to him. He provided Mr Murray with documentation to be sent with the item with the apparent intention that it would be read by ACS officers if they inspected the package upon its arrival. The documentation included a signed statement by the applicant addressed to the ACS, to the effect that the item was not a firearm part as defined in the regulation for the same reasons that the AKM parts had not been firearm parts.
- On the following day the applicant emailed Mr Belford, saying, amongst other things:
“I only contact you for advice on items I am not 100% sure on. For example, the latest 2 items for the Browning machine gun, one was a stock, and certain stocks do require import approval, so I had to get clarification, the barrel shroud, I had to ensure it was not considered a barrel, although I would have imported, and appealed if ACS stated it was.
…
Rather than stretch the resources of your office, and the AFP every time I had an idea to import something, based on your previous comment of… ‘Customs remain the authority for determination of Customs (Prohibited Imports) Regulations 1956, with the AFP as our prime technical advice agency’ …am I correct in assuming that if Customs … makes a decision that something that an importer wishes to import, especially if Customs have advice from the AFP, that the item requires a permit to import, then that advice is correct?
…
Basically, based on what I was advised on in 1999 … and various written communications between then and as late as late last year by yourself, I know what the definition of a firearm, firearm part, and firearm accessory is, and therefore know what requires a permit, it has remained the same since 1999.
I do not, and will not seek clarification from you for items that do not match the above, and require no permit to import, unless there has been a legislative change.”
- On 22 January 2006, Mr Belford replied:
“… I am happy to field any questions that you may have in relation to imports that may possibly fall within the Customs (Prohibited Imports) Regulations 1956. Secondly, you are correct in assuming that any formal advice received from a Customs Officer in a Customs Firearm Cell is correct; given the information provided to them on which to consider an issue is full and correct and that the advice is considered in relation to the Regulations as they stand at that time.”
- In paragraph 92 of his affidavit, the applicant said that prior to the subject item being sent to him, the applicant had considered his various dealings with the ACS and its assessment of other items which he had imported. In particular, he had considered the assessment by the AFP and the ACS of the AKM parts which, the applicant said, had been destroyed as workable parts in the same way as the subject item. He also thought that the price paid for the subject item ($50) “did not suggest it was a working or repairable … receiver”. In paragraph 93 of his affidavit, the applicant said:
“At the time Rufus Murray sent [the subject item] to me I held the honest and reasonable belief that [the subject item] was not a firearm part as defined in regulation 4F … because [the subject item] was permanently destroyed.”
- At the sentencing hearing, the present respondent objected to paragraph 93 as irrelevant. It was submitted that it could be relevant only to an issue of an honest and reasonable mistake of fact, an issue which was then “closed”. The applicant’s then counsel argued that the evidence was relevant to the operation of s 19B. In the course of that argument, the Chief Magistrate asked the present respondent’s counsel whether he intended to cross‑examine the applicant, noting that unless he was cross‑examined, then subject to the objection, the respondent would be “left with what’s there.” The applicant’s counsel confirmed that the applicant was available for cross‑examination.
- The Chief Magistrate ruled that paragraph 93 would not be received as evidence of the reasonableness of the applicant’s belief. He held that whether the belief was reasonable was to be assessed by the court. He further ruled that the evidence was not inconsistent with the applicant’s conviction because it was evidence of a mistake of law and not one of fact. As direct evidence of his own state of mind, paragraph 93 remained part of the evidence.
- There followed extensive arguments by each counsel as to the appropriate outcome, without any oral evidence and without, in particular, any cross‑examination of the applicant. At one point in the course of that argument, his Honour again reminded the respondent’s counsel that there had been no cross‑examination. The respondent did, however, challenge that evidence in its submissions. Ultimately the respondent submitted that the appropriate outcome was a fine in the range of $6,500 to $9,000 and the applicant’s counsel submitted that he should be discharged without a conviction under s 19B.
The judgment in the Magistrates Court
- Section 19B relevantly provides:
“(1)Where:
- a person is charged before a court with a federal offence or federal offences; and
- the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
- the character, antecedents, age, health or mental condition of the person;
- the extent (if any) to which the offence is of a trivial nature; or
- the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
- dismiss the charge or charges … or
- discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c) …”.
- His Honour discussed the evidence relating to the matters in s 19B(1)(b)(i), some which were favourable to the applicant and others, such as the applicant’s previous conviction, which were unfavourable. As to s 19B(1)(b)(ii), his Honour said that the offence was not of a trivial nature. At that point his Honour said:
“When looked at separately, the factors in subparagraphs (1) and (2) of section 19B would not, in my opinion, justify the making of an order under that section.”[11]
- But his Honour then turned to the argument based upon the evidence of the applicant’s belief that he was entitled to import this item. He referred to the importation of the AKM parts in 2002 and reasoned as follows:
“They were released to you by Customs as not requiring a permit. In your affidavit you say – and this is not contradicted – that you sourced [the subject item] from the United States after viewing photographs of it and satisfying yourself from the photographs that it was not a firearm part as defined in regulation 4F … [f]or the same reasons [that] the AKM machine gun receiver sections were held by Customs to not be firearm parts. It would have, in the light of your experience of importing weapons parts, been prudent for you to have obtained advance advice on the importation from Customs by, for example, providing them with the photographs you had of [the subject item]. However, I do not conclude that your failure to do so was motivated by any intent to deceive Customs.
I have compared [the subject item] and the two AKM receiver parts and am satisfied that each has been cut by a blowtorch and that they are sufficiently similar in this state of modification to found an honest and reasonable belief on your part as to the lawfulness of importing [the subject item]. On the evidence, I am satisfied you honestly believed that you were permitted to import [the subject item], given its similarity to the AKM receiver parts you had earlier been permitted to import. This is an important finding because, in my opinion, it places the circumstances of your case in a different and exceptional category. …
I am persuaded that this offence was committed under extenuating circumstances in that the circumstances of its commission place it in an unusual or atypical category.”
- Having concluded that there was a power which was exercisable under s 19B, his Honour turned to the question of whether that power should be exercised. He identified other mitigating factors and the passage of a “considerable period” since the commission of the offence in early 2006. He noted that a conviction might affect the applicant’s contract of employment with a “government agency”. He concluded that the applicant should be discharged without a conviction upon giving security that he be of good behaviour for a period of two years. The applicant was ordered to pay costs in an amount of $6,339.40.
The appeal to the District Court
- The present respondent listed many grounds in his notice of appeal to the District Court and there was more than one complaint in respect of the Chief Magistrate’s finding that the applicant had held an honest and reasonable belief as to the legality of his action. One of those grounds was that the finding was inconsistent with another finding which the Chief Magistrate had made earlier in his sentencing judgment. That inconsistency need not be considered here because the District Court judge concluded that it did not exist. Another ground was that the Chief Magistrate had not considered the evidence of “previous, unsuccessful, assertions by the defendant that he had been misled by prosecuting authorities” and that he had known of a “potential difficulty with the importation of [the subject item] but, instead of raising it in a bona fide straightforward matter, [had] elected to take the chance that the parcel containing [the subject item] would not be detected.” In essence, the suggested error in finding the critical fact of the applicant’s belief was said to have been a failure to consider all of the evidence.
- In her reasons for judgment delivered on 4 March 2015, when her Honour set aside the Chief Magistrate’s order, the judge addressed, amongst other questions, whether the finding of an honest belief was open on the evidence before the Chief Magistrate. On that question, her Honour began by noting that the Chief Magistrate had acted on the uncontradicted evidence of the applicant that he had satisfied himself that the subject item was sufficiently similar to the AKM parts and that this accorded with his Honour’s own view as to that similarity.[12]
- Her Honour then discussed the nature of her power to interfere with the critical finding as follows:
“[18]Appellate courts will only disturb findings about the evidence given by a lay witness at first instance where there is a proper basis for doing so. Customs argued his Honour’s view about the honesty of Mr Powell’s belief is not based on an assessment of demeanour or of credit. Of course he could make no assessment of demeanour given Mr Powell did not give oral evidence.
[19]He could, though, assess credit; just as this court can. In this case Mr Powell did not give oral evidence. His Honour’s conclusions about either the honesty or reasonableness of Mr Powell’s belief is a matter of inference from the material before him. On appeal, this court is in as good a position as the sentencing judge to decide the proper inference to draw from the uncontested facts.”
For that last statement, her Honour cited Warren v Coombes[13] where Gibbs ACJ, Jacobs and Murphy JJ said:[14]
“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”
- The approach of an appellate court differs from that stated in Warren where the finding of fact in the primary judgment is affected by an impression of the credibility of a witness based at least in part upon the primary judge’s advantage of seeing the witness give his or her evidence. In cases of that kind, a finding of fact may be reversed by an appellate court if, as McHugh J said in Fox v Percy,[15] there is “something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses.” Gleeson CJ, Gummow and Kirby JJ there said that in such cases, an error might be demonstrated by “incontrovertible facts or uncontested testimony” or where the decision at the trial is “glaringly improbable” or “contrary to compelling inferences”.[16]
- The task of an appellate court in conducting an appeal by way of rehearing was recently described by the High Court in Robinson Helicopter Co Inc v McDermott as follows:[17]
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’ or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.”
Their Honours there cited, amongst other cases, Fox v Percy and, in particular, the statements to which I have just referred. In Marriner v Australian Super Developments Pty Ltd,[18] the Victorian Court of Appeal cited that passage from Robinson Helicopter Co Inc as relevant to cases where a finding of fact depended upon a view taken of conflicting testimony rather than being an inference drawn from uncontroverted facts.
- Contrary to what the judge said of the present case, the Chief Magistrate’s conclusions as to the applicant’s state of mind were not “a matter of inference from uncontested facts.” Rather, his Honour’s conclusion resulted from the acceptance of the applicant’s evidence which directly proved his state of mind. His Honour was persuaded to accept that evidence by making his own comparison of the subject item and the AKM parts. The extent of the similarity, in his Honour’s view, was relevant in two ways. The first was that it made the applicant’s evidence more persuasive: it was probable that the applicant did believe that the items were relevantly similar if that was also his Honour’s view. Secondly, it was relevant to whether the belief was a reasonable one.
- The question for the Chief Magistrate had been whether the applicant’s direct evidence of his own state of mind was to be accepted. The question for the District Court judge was whether there was some error in accepting that evidence. The District Court was required to make its own finding only if it concluded that the Chief Magistrate had erred. By s 223 of the Justices Act, the appeal to the District Court was by way of rehearing. Under such an appeal, the powers of the appellate court were exercisable only if it was demonstrated that the order the subject of the appeal was the result of some legal, factual or discretionary error.[19] Because the applicant’s evidence was by affidavit and he was not cross‑examined, the Chief Magistrate did not have what is said to be the usual advantage of seeing the witness. But it was not a case of the kind in Warren and her Honour proceeded upon an incorrect characterisation of the reasoning in the primary judgment.
- Her Honour then considered and rejected the argument, foreshadowed by a ground of appeal noted above at [30], that the critical finding was inconsistent with another finding which the Chief Magistrate had made earlier in his judgment.[20] Her Honour then said:
“[24]Nevertheless, while giving respect and weight to his Honour’s reasons, I have concluded that the finding that Mr Powell held an honest belief he could import the part without permit is not open on the evidence.”
There was, of course, evidence which proved that the applicant’s state of mind was as the Chief Magistrate found. The finding of an honest belief was open if that evidence was accepted. The question was whether the Chief Magistrate erred in accepting that evidence.
- Her Honour then discussed the history of the applicant’s dealings with the ACS, largely as I have done. After discussing the applicant’s correspondence with the ACS in January 2006, her Honour made these observations and comments:
“[38]At this point I will make a number of observations. Firstly, Mr Powell enquired which agency made the determinations under the Regulations prior to ordering the receiver part, but after he had advertised for it. Secondly, the query about whether he could act on advice from Customs Officers being correct was made after the part was ordered. Thirdly, Mr Powell had just made a specific and detailed enquiry about two other parts, and had received specific and direct advice about their status.
[39]Considered in context, Mr Powell’s assertion that he believed he could import the item without permit is incongruent. He went to considerable trouble to obtain written assurance that he could act on past advice to be correct, without being explicit about what advice he had received. Much of Mr Powell’s affidavit is self‑serving rationalisation, but ultimately it is also revealing of his underlying reasoning.”
Her Honour then referred to the evidence, which was also from the applicant’s affidavit, that at his trial for the offence of importing a breech bolt, an AFP officer had said that an importer should seek clarification with Customs prior to importation.[21] Referring to the applicant’s evidence that he “specifically had in mind the [AKM parts]” her Honour said:[22]
“This begs the question: Why, if he had this in mind, was he not explicit about this with Mr Belford?”
Her Honour then reasoned as follows:
“[43]The learned Chief Magistrate observed that Mr Powell’s conviction in 2004 for importing a breech bolt without a permit would have put him on notice as to the risk of importing items that may infringe the Customs law. Respectfully, I agree.
[44]This is not the first time that Mr Powell has argued he was misled by authorities. He made and still maintains this argument in relation to the breech bolt prosecution. Even on appeal, Mr Powell submitted a chronology in relation to that prosecution which he said demonstrates how the Appellant officially induced the Respondent’s offending leading to Previous Prosecution.
[45]Yet his evident anxiety to obtain accurate advice upon which he could rely, is at odds with his failure to ask for direct advice in relation to this particular part.
[46]Mr Powell had a photograph and details of the M16 receiver part. Mr Belford invited him to ask any questions about imports that may possibly fall within the Regulations. Mr Powell’s past experiences alerted him to the possibility that defining a firearm part in general terms was fraught with risk. He himself submitted that whether a cut firearm part is still a firearm part is a matter of fact and degree.
[47]Mr Davies gave evidence on trial that this particular part could be rendered whole and usable with a limited amount of feasible work. While Mr Powell might have compared the ordered part to the parts he had previously imported, he could simply have asked: Do I need a permit to import the M16 receiver part (photograph attached) that I have just ordered? But, he did not.
[48]Instead, he sent Rufus Murray an extract from a chronology of his importing activity prepared by Customs for the breech bolt prosecution. The extract was the entry showing the AKM receiver parts imported in 2002 did not require a permit. Mr Powell sent this to Mr Murray to include in the package when he sent the M16 receiver part to him. The potential audience was any authorised person who might intercept the parcel for Customs purposes.
[49]Mr Powell may well have been frustrated by what he perceived to be inconsistent advice from Customs Officers in relation to previous imports: the trunions with receiver parts still attached; the Uzi receiver parts and the AKM receiver parts. He may well have believed he should be able to import the M16 receiver part without a permit, because of its similarity to the AKM receiver parts. However, his actions indicate he had no confidence that would be Custom’s ruling if he asked that question directly.
[50]I consider the only rational inference open on the evidence is that Mr Powell believed he had a basis for arguing a permit was not required, but did not want to take the risk of being advised to the contrary. So he did not ask the question.
[51]Respectfully, having analysed the evidence, it was not open to the learned Chief Magistrate to find that Mr Powell honestly believed he could import this part without a permit.”
(footnotes omitted)
- In essence, her Honour inferred that the applicant was concerned that a permit was required and therefore decided not to ask for Mr Belford’s opinion on the subject when corresponding with him at the relevant time. In her Honour’s view, this could have been the only explanation for not asking Mr Belford about the proposed importation of the subject item.
- But the applicant’s evidence offered another explanation, namely that he held no doubt about the subject item because of his experience with the AKM parts. The question for the judge was whether the Chief Magistrate had erred in accepting that explanation. Her Honour’s reasons revealed the basis for the inference which she drew, if the applicant’s direct evidence as to his state of mind was to be disregarded. But the reasons did not reveal why that evidence was to be disregarded. The probability of the applicant having this mistaken belief was affected by the extent of its similarity to the AKM parts. An assessment of that similarity was made by the Chief Magistrate. No such assessment appears to have been made by the judge and nor did the judge identify any error in the Chief Magistrate’s assessment.
- A further consideration was that the applicant’s evidence had not been subjected to cross‑examination. The absence of cross‑examination need not entail the acceptance of evidence which has been given but “it certainly enables that evidence to be regarded by any tribunal of fact with a greater degree of assurance than might otherwise have been the case”, as Samuels JA (with whom Hutley and Priestley JJA agreed) said in Paric v John Holland Constructions Pty Ltd.[23]
- In my respectful opinion, the Chief Magistrate’s reasoning was logical and apparently sound. He did not disregard the other evidence. His Honour may or may not have been correct in his assessment of the degree of similarity of the subject item to the AKM parts. But if he was correct in that assessment, it was open to him to make the critical finding. As I have discussed, the Chief Magistrate’s reasoning was not analysed by her Honour. That approach reflected the judge’s view that this was a case of the kind in Warren. But the judge was obliged to consider also the applicant’s evidence and the particular evidence which the Chief Magistrate found had supported it.
An appeal to this court
- The appeal for which leave is sought in this court is an appeal in the strict sense. It is not, as was the appeal to the District Court under s 222 of the Justices Act, an appeal by way of rehearing. Section 118(8) of the District Court of Queensland Act 1967 (Qld) provides that an appeal from the District Court in its original jurisdiction is by way of rehearing. This is an appeal from the District Court in its appellate jurisdiction. The nature of an appeal in the strict sense was described in Lacey v Attorney‑General (Qld) as follows:[24]
“[An appeal] in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.”
- An appeal to the High Court under s 73 of the Constitution is an appeal in the strict sense. An appellate court’s powers in such an appeal are “limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.”[25] Describing the court’s duty and powers in a strict appeal, Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy:[26]
“Our sole duty in this case is to determine whether error has been shown on the part of the Court of Appeal. This Court is not engaged in a rehearing. As such, it is not this Court’s task to decide where the truth lay between competing versions of the collision given by the parties.”
In saying that it was not the Court’s task to decide where the truth lay, their Honours were explaining that the court’s role in such an appeal is to determine whether there was a demonstrated error in the court below, considering the evidence as it was when the original decision was given. They were not saying that appeals in the strict sense are limited to errors of law.
- By s 119(1) of the District Court of Queensland Act, where an appeal from the District Court to this court is not by way of rehearing, this court may not draw inferences which are inconsistent with the findings of the judge. That provision has a practical effect of limiting the scope for appellate review of factual determinations in the District Court where that court has exercised its jurisdiction under s 222 of the Justices Act. It does not follow that in all such cases, the District Court’s fact finding is immune from review.
- Yet according to some authorities, in this context an appeal to this court is limited to an error of law: Tsigounis v Medical Board of Queensland;[27] Commissioner of Police v Stehbens;[28] White v Commissioner of Police;[29] and R v Ruthven.[30]
- However that is not the universal view within this court. Most recently, the question was left open by the President and Atkinson J in Burke v Commissioner of Police.[31] The President there referred to the Explanatory Memorandum and the second reading speech of the Minister for what became the present s 118[32] and said:
“[5]Nothing in that material suggests that the legislature intended appeals under s 118(3) to be limited to questions of law. The specific terms of s 118(3) clearly limit appeals under it by requiring that the Court of Appeal’s leave is needed to appeal. Ordinarily, an applicant will be granted leave to appeal under s 118(3) where an error requiring the correction of a substantial injustice is demonstrated. But leave might also be granted, even absent error, in other instances, for example, a serious case, one of public interest, one involving an important question of law, or, as foreshadowed in the second reading speech, where the case should be heard with another related appeal. The categories where leave may be granted are not closed. What is clear is that leave will not be given lightly to appeal from an interlocutory order of the District Court or from the District Court in its appellate jurisdiction where the applicant has already had the benefit of a hearing and a subsequent appeal.
[6]I am presently unpersuaded that the legislature intended, in a case where this Court considered leave to appeal was warranted under s 118(3), that the appeal must be refused if it does not involve an error of law. I observe, however, that if an appeal under s 118(3) is limited to an error, an error in the exercise of a judicial discretion is an error of law. And a finding of fact not open on the evidence is an error involving at least a mixed question of fact and law.”
- The view that an appeal such as this is confined to a question of law appears to have been founded upon the passage in Fox v Percy which I have set out above at [44].[33] With respect to those who have expressed or adopted a different view, that passage does not suggest that a court hearing an appeal in the strict sense is confined to errors of law. Rather, as already noted, it emphasises that the role of an appellate court in a strict appeal is confined to a consideration of whether error in considering the original evidence has been shown on the part of the court from which the appeal has come.
- The role and powers of this court hearing an appeal from the District Court which has exercised its appellate jurisdiction is therefore illustrated by the extensive body of cases in which the High Court has interfered with decisions of intermediate courts of appeal on questions of fact. This court’s role and powers are affected, in some cases, by the operation of s 119(1). But in the present case, that is not an impediment to the outcome which is sought by the applicant.
- The decision of the District Court depended upon her Honour’s reversal of the critical factual finding made by the Chief Magistrate. Absent that reversal, there was no basis for interfering with the discretionary judgment of the Chief Magistrate. As I have explained, the judge erred in reversing that finding. The error came from a misunderstanding, in this case, of the nature of the required review of the decision of the Chief Magistrate. That error of principle was arguably one of law. But if it was an error of fact, it is still reviewable by this court.
Conclusion and orders
- I am persuaded that the appeal to the District Court ought not to have been allowed. The applicant was deprived of an outcome under which no conviction was recorded. This case warrants the grant of leave to appeal so that the decision of the Chief Magistrate can be restored.
- I would order as follows:
- Grant leave to appeal against the judgments in the District Court delivered on 4 March 2015 and 6 May 2015.
- In each case allow the appeal and set aside the orders made in the District Court.
- Order the respondent to pay to the applicant his costs of the proceedings in the District Court the subject of those judgments and of these appeals.
- DAUBNEY J: I respectfully agree with Gotterson JA that, in the circumstances of this case which have been comprehensively traversed by Philip McMurdo JA and which, on any view, expose an error of law by the District Court judge, and having regard to the fact that argument in this case was not expressly directed to the nature of the appeal, it is unnecessary, if not undesirable, for this case to be the vehicle for deciding the question which was left open in Burke v Commissioner of Police.
- With that reservation, I otherwise agree with the reasons and orders proposed by Philip McMurdo JA.
Footnotes
[1] [2016] QCA 184 at [5]-[6] and [52].
[2] Powell v Chief Executive Officer of Customs [2011] QDC 272.
[3] Powell v Chief Executive Officer of Customs [2012] QCA 338.
[4] s 19B(1)(b).
[5] Powell v Chief Executive Officer of Customs [2012] QCA 338 at [34].
[6] Because this was an offence for which there was no fault element, s 9.2 of the Criminal Code (Cth) applied so that only a mistake of fact could be exculpatory.
[7] Chief Executive Officer of Customs v Powell [2015] QDC 48.
[8] Chief Executive Officer of Customs v Powell [2015] QDC 97.
[9] District Court of Queensland Act 1967 (Qld) ss 118(2), (3).
[10] Customs (Prohibited Imports) Regulation 1956 (Cth) reg 4F.
[11] His Honour evidently was referring to subparagraphs (i) and (ii) of s 19B(1)(b).
[12] [2015] QDC 48 at [16].
[13] (1979) 142 CLR 531.
[14] (1979) 142 CLR 531, 551.
[15] (2003) 214 CLR 118, 146-147 [90].
[16] (2003) 214 CLR 118, 128 [29] citing Brunskill v Sovereign Marine and General Insurance Co Pty Ltd (1985) 59 ALJR 842, 844; (1985) 62 ALR 53, 57 and Chambers v Jobling (1986) 7 NSWLR 1, 10.
[17] [2016] HCA 22 at [43]; (2016) 90 ALJR 679, 686-687.
[18] [2016] VSCA 141 at [140] [141].
[19] Allesch v Maunz (2000) 203 CLR 172, 180 [23]; Lacey v Attorney‑General (Qld) (2011) 242 CLR 573, 597 [57].
[20] [2015] QDC 48 at [20]-[23].
[21] [2015] QDC 48 at [40].
[22] [2015] QDC 48 at [42].
[23] [1984] 2 NSWLR 505, 507.
[24] (2011) 242 CLR 573, 596-597 [57].
[25] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203 [12].
[26] (2003) 214 CLR 118, 129.
[27] [2006] QCA 295 at [14].
[28] [2013] QCA 81 at [5].
[29] [2014] QCA 121 at [5], [8].
[30] [2013] QCA 142.
[31] [2016] QCA 184 at [2]-[7] and [52].
[32] By the enactment of the Courts Reform Amendment Act 1997 (Qld).
[33] That passage being cited in Tsigounis v Medical Board of Queensland [2006] QCA 295 at [14].