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The Court of Appeal was asked to consider the application of s 236 of the Customs Act 1901 (Cth), which relates to aiding, abetting or being concerned in the commission of an offence under the Customs Act 1901 (Cth). The questions were whether or not the respondent could be guilty under s 236 when a defence of mistake of fact was available to those who had committed the offences, and whether or not a mental element requiring the respondent to be knowingly concerned in the commission of the offences should be imposed.
Fraser and Philippides and Mullins JJA
6 April 2021
The respondent was retained as the shipping agent of a number of ships for the purposes of complying with the reporting obligations of those ships’ masters. . The reporting obligations of the masters include an obligation to report to the Department within 96 hours of the time of arrival in a port each member of the crew and each passenger who would be on board the ship at the time of its arrival, as required by ss 64ACB and 64ACA Customs Act 1901 (Cth), and an obligation to report the impending arrival of the ship under s 64. . The applicant contended that the masters of seven ships which had engaged the respondent between 2014 and 2017 had committed a total of 132 offences by failing to comply with their obligations under ss 64, 64ACA and 64ACB. .
The failure to comply with these obligations is an offence of strict liability pursuant to ss 64ACD(2) to 64ACD(4) and 64(13) to 64(14), but a mistake of fact defence was available to each of the masters. . Rather than prosecuting the ships’ masters, the applicant prosecuted the respondent for being directly concerned in the offences of the masters pursuant to s 236, which provides: :
“For the purposes of a Customs prosecution (within the meaning of section 244), whoever aids abets counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly.”
At trial in the Magistrates Court, the agreed statement of facts provided that in respect of each of the ships, the respondent had been given the relevant documentation by the ship’s master in a timely manner, but it had notified the Department late due to human error. . Ultimately, the respondent was found not guilty of each charge. . The applicant appealed, unsuccessfully, to the District Court. –. The applicant then sought leave to appeal to the Court of Appeal. . The Court granted leave in respect of only one of the three grounds of appeal: “Under s 236 the respondent could be concerned in the commission of an offence against the Customs Act even if a ‘mistake of fact defence’ may be available to the master under s 9.2 of the Commonwealth Criminal Code”. –.
Fraser JA, with whom Philippides and Mullins JJA agreed, considered that for the purposes of s 236, a person will commit an offence if they do “an act prohibited by the relevant provision or omits to do an act the person is obliged to do by the relevant provision”. . There are no additional requirements contemplated in the phrase “commission of any offence” in s 236. . Nor does an application of the Commonwealth Criminal Code 1995 (as applied to the Customs Act 1901 (Cth)) alter or amend this liability. –. Accordingly, “‘offence’ in the expression ‘the commission of any offence’ refers to the act or omission by which the relevant obligation was contravened”. . The upshot of this is that the defence of mistake of fact is irrelevant to the application of s 236. . Accordingly, a shipping agent could be guilty of strict liability offences even though the masters might not have committed any offences themselves, where the shipping agent did not pass on the reports in the time required. –, , –.
His Honour next addressed the meaning of the phrase “by act or omission … directly or indirectly concerned in the commission of any offence against this Act” in s 236. As to this, the applicant contended that s 236 does not require any knowledge on the part of the respondent for it to be liable. –. Fraser JA disagreed, finding that “it is necessary that the alleged second party knew all of the essential facts which constituted the commission of the offence and intentionally aided, abetted, counselled or procured the relevant acts or omissions”. . This conclusion was supported by the statutory history underpinning the Customs Act 1901 (Cth). –. Although the applicant contended that the position would be different for someone who was “concerned in” an offence, his Honour also disagreed with that position, holding that, in the context of s 236, “concerned” has the same meaning as “knowingly concerned”. –.
Accordingly, Fraser JA concluded that in a prosecution under s 236, “proof is required that the defendant, knowing of the conduct constituting the essential facts by which the offence was being or would be committed, intentionally did or omitted to do the act by which the defendant is alleged to have been concerned in the commission of the offence”. . On the basis of this conclusion, his Honour held that the respondent would be guilty under s 236 if “it knew that the required report had not been received by the Department and intentionally did not report on the master’s behalf to Customs before the end of the specified period”. . Given the findings by the Magistrate, this was not made out. .
In the event, the appeal was dismissed. .