Gragg v Collector of Customs [1994] CKCA 18; CA 13.1993 (29 November 1994)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND

CA 13/93

BETWEEN

C L GRAGG
Appellant

AND

THE COLLECTOR OF CUSTOMS
Respondent

Coram: Quilliam J
Hillyer J
Gilbert J

Hearing: 29 November 1994

Counsel: B H Giles & SRA Anderson for Appellant
M B Van Ryn & JPH Barker for Respondent

Judgment: 29 November 1994

ORAL JUDGMENT OF THE COURT DELIVERED BY QUILLIAM J

On 27th November 1993 the appellant faced two charges in the High Court in Rarotonga under the Customs Act 1913. The first under s 212 was that he did wilfully make a false declaration to customs by wilfully failing to declare goods for sale in his business. The second was that he attempted to smuggle the goods referred to in the first charge. In the result he was convicted of an alternative charge in respect of the first incident, namely that of making an erroneous declaration, but he was convicted on the second charge of attempted smuggling. He does not appeal against his conviction or sentence on the first charge, but he appeals against both conviction and sentence on the second charge.

Briefly, the facts were that the appellant who is in business under the style of "The Beachcomber" in Rarotonga returned on 25th September 1993 from a buying trip in Hawaii. He had air-freighted some of his purchases, but had packed 11 packages in his suitcases. On arrival at Rarotonga the appellant produced a completed, standard customs declaration form on which he had answered all the questions in the negative. This included a question as to whether he had any goods for sale, trade or use in his business or profession. Up to that point the facts were not in dispute. There was then a conflict as to what was said between the appellant and customs officers. The Judge's notes of evidence contain, unfortunately, no detail and counsel accordingly attempted to reconstruct what was said and achieved at least a measure of agreement as to the evidence and that was put before us in the form of an agreed memorandum.

The first charge of wilfully making a false declaration was based on the submission that the appellant's answer on the declaration form that he carried no goods for his business was not only untrue but was wilfully so. The appellant's explanation for this undoubtedly incorrect declaration was that his wife usually completed these forms, but was not with him on this occasion, that he could not read some of it and that he had taken some form of sedative on the aircraft and was not fully aware of what he was doing. He also said he told the customs officers that some of his goods were coming through airfreight and that a declaration as to what he was bringing in would be made by his agent on the following Monday.

It should perhaps be observed that this case was dealt with by the Judge on a Saturday afternoon at the end of a busy session and therefore the oral judgment which he then delivered was no doubt briefer and less clearly expressed than His Honour would in other circumstances have preferred. There are no direct findings on matters of fact of considerable importance and in particular in matters of credibility. The Judge, however, in his findings was not prepared to say that the false declaration had been wilful and accordingly at that stage he amended the charge to one of making an erroneous declaration under s 211. He entered a conviction and fine on that charge. His Honour then went on to consider the charge of attempted smuggling and dealt with the evidence as to what occurred between the appellant and the customs officers. He did not, however, as I have said, make any direct findings of credibility in respect of that.

There have been several grounds of appeal against the conviction for attempted smuggling, but I find it only necessary to deal with the first of them which was that the finding on the second charge of attempted smuggling was inconsistent with that on the original first charge, so that the two could not stand together.

It needs to be observed that in terms of s 277 of the Customs Act there was a presumption in this case of an intention to defraud the revenue unless the contrary were proved. This particular aspect is not mentioned in the judgment. This Court is faced with the difficulty that there were two charges preferred involving precisely the same set of facts and upon the one the Judge rejected the concept of wilfulness, whereas on the other he made a finding that there was such wilfulness, namely an intent to defraud the revenue.

In these circumstances, for myself, I am unable to see how that second finding can stand. Notwithstanding the existence of the presumption, there was in the end no finding of intent to defraud which could stand and accordingly the presumption could not in those circumstances assist the Crown. We have been addressed at length on various aspects of this matter, but for myself I am satisfied that the basis upon which a conviction was entered was unsound because of the contrary finding by the Judge on the first charge. In those circumstances I would allow the appeal and quash the conviction.

As the Court is in agreement, the decision is that the appeal is allowed, the conviction will be quashed and there will be an order for payment of the appellant's costs on this second charge by the respondent.