Sternberg v R [1953] HCA 15; (1953) 88 CLR 646 (17 April 1953)

HIGH COURT OF AUSTRALIA

STERNBERG v. THE QUEEN [1953] HCA 15; (1953) 88 CLR 646

Customs

High Court of Australia
Dixon C.J.(1), Webb(2) and Kitto(3) JJ.

CATCHWORDS

Customs - Offence - Non-genuine invoice - False entry - Declaration - Belief that contents true - Liability for acts of agent - "Entry" - Prosecution - Intervention by High Court - Customs Act 1901-1947 (No. 6 of 1901 - No. 54 of 1947), ss. 155, 234 (d) (e).

HEARING

Sydney, 1953, April 17. 17:4:1953
APPLICATION for special leave to appeal from the Court of Criminal Appeal of New South Wales.

DECISION

The following judgments were delivered by:-
DIXON C.J. This case arises out of a peculiar situation. I shall not go into that charges were made against Falstein under s. 234(d) of the Customs Act 1901-1947 for that he made a false entry. He made an entry by a customs agent named Preston. Preston acted on the instructions of the applicant in this case, Sternberg. The charges against Falstein were that he made entries which were false in a particular; the particular related to the value or value for duty of the goods. Of that offence Falstein was in fact convicted; whether rightly or not is not material at the moment. Sternberg was proceeded against on informations in relation to these charges under s. 236, the charge against him being that he was concerned in the commission of the offence or offences by Falstein. (at p651)

2. The fact was that Preston was unaware that the value or value for duty was incorrectly stated. The fact is stated to be that Falstein was also unaware that the value or value for duty was incorrectly stated. Sternberg must be taken to be aware that the value or value for duty was incorrectly stated. (at p651)

3. In those circumstances it was argued that on the form of entry, which is in the form prescribed by the Customs Regulations and is to be found in Form II of those regulations, the person making the entry - that is Falstein or his agent Preston - did not commit himself to the absolute truth of the particulars stated but only to his belief that the particulars stated were correct. (at p651)

4. That argument depends primarily on the prescribed form. Under the prescribed form, on the face of the document there are columns and blanks in which all the particulars relating to an import must be stated, the name of the ship, particulars concerning the ship, owners (which I take to be the owners of the goods although that is not clear) and the port of entry, dates, and then in relation to the goods, the number on the manifest of the ship, marks and numbers, number of packages, statistical items, description of packages and goods, tariff item, country of origin, quantity or weight, value or value for duty, gross duty, duty payable and primage if any. That entry must be presented. Upon the back of the form is a declaration and that declaration may be made by the owner of the goods or the agent. If it is made by the agent there is a space in which he is to state by whom he is duly authorized. The form says "As to the goods mentioned in this entry and herein entered, I declare: 1. That I am the owner of the goods or the agent authorised by the owner. 2. That to the best of my knowledge and belief the description and particulars of the goods as stated in this entry are true and correct in every respect. 3. That to the best of my knowledge and belief no goods are contained in any package specified in this entry other than as appears in the entry. 4. That nothing on my part or to my knowledge on the part of any person has been done, concealed or suppressed whereby His Majesty the King may be defrauded of any duty due." (at p652)

5. It will be observed that the second, third and fourth statements are made to the knowledge and belief of the declarant. The next statement is "That I enter the goods as of the value and of the description and quantities stated in this entry, and for home consumption". That paragraph of the declaration is not qualified by reference to knowledge and belief. However the argument is that when you read the whole document, the front - which describes itself as "Import entry" - and the back - which describes itself as a "Declaration" - and it is reasonably plain that the intention is to require the person making the entry (who makes the declaration) to state in the entry no fact as an absolute objective fact, but to state it only as something which is true according to the best of his knowledge or his belief. (at p652)

6. If that were the correct view of the document the consequences which would follow are these. On the hypothesis which has been made, the agent, Preston, would have made the declaration to the best of his belief; the principal, Falstein, on whose behalf he made it - is assumed not to have been aware it was false. There could therefore be no principal offence and it is the fact that s. 236 requires a principal offence. That being so, Sternberg, in spite of his knowledge, could not have been concerned in the commission of the offence. (at p652)

7. The primary question is whether that understanding of the customs entry is correct. I may say for myself that I would feel some degree of surprise if, inadvertently or intentionally the customs authorities had deprived themselves of the right, which has generally been assumed to be theirs, to have an entry which is correct in its particulars and objectively correct. It is stated, however, that the history of the matter shows that in all probability, in mercy to people making declarations on the entry, such a course was taken after the judgment of Mr. Justice Isaacs in the case of R. v. Tarrant [1912] HCA 59; (1912) 15 CLR 172 . There he imposed penalties. His Honour made observations as to the impropriety of persons who did not know the facts making declarations in the then positive form which was required. (at p652)

8. When, however, the declaration is compared with the front of the entry proper, it appears to me to be reasonably clear that all that was desired was to enable the declarant to declare according to the best of his information and belief as to the matters stated in pars. 2, 3 and 4. The qualification is not thought desirable in the case of par. 5 and the reason is, as it appears to me, that the whole customs duty depends upon the correctness of the entry in that particular. In a matter of this description, where knowledge belongs to the importer and the authorities have none, it has been traditional to require a positive statement on which the assessment of duty may proceed. (at p653)

9. It is true, as Dr. Louat has observed, that now difficulties exist in ascertaining the value of goods imported from abroad with precision and correctness and, indeed, it is true that the application of some of the provisions of the Customs Act in obtaining the domestic value in the country of origin may not at any time have been easy. But that, to my mind, does not militate against the policy of insisting that those who import shall be in a position to state the facts upon which duty depends. (at p653)

10. Section 234(d) is really the only provision of the Act which is in question. It appears to me to be a clear provision making it an offence to enter goods by an entry which in any particular is contrary to fact. If the view contended for were correct, the only fact which could be wrong would be the belief of the person concerned; the belief would extend over the whole entry and there is only one belief in which he could be wrong and that is the belief in the correctness of entry. (at p653)

11. The document on which the argument must depend is the form of entry itself. I myself prefer the view that the entry consists of two parts; (1) the entry containing the particulars, and (2) the declaration which verifies the entry. I think that you cannot carry from the document which verifies the entry into the entry itself any qualifications as to the facts stated in the entry. But I desire to add that cases of this description are not of a kind in which I should be prepared to grant special leave. Even if I had some doubt as to the correctness of the conviction, I should not think that it was for this Court to intervene simply because it is a prosecution in which points of law may be raised. This is particularly so after the very long course of the proceedings extending through three courts. I am not referring to the misadventures which the case seems to have encountered at some stage of these proceedings, but merely to the fact that it has been already considered by three courts. (at p653)

12. In these circumstances I think special leave to appeal should be refused. (at p654)

WEBB J. I agree. (at p654)

KITTO J. I agree. (at p654)

ORDER

Special leave to appeal refused.