DPP (Cth) v Farmer (a Pseudonym) and Ors

(2017) 54 VR 420; [2017] VSCA 292

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Admissibility
4. › Improperly or illegally obtained evidence
5. › Customs inspection of mobile phones
6. › Whether goods 'subject to the control of the Customs'
7. › Whether passenger's carriage of personal effects constitutes 'export' or 'import'
8. › Exclusion under s 138 Evidence Act 2008
9. › Customs Act 1901 (Cth), ss 30, 68, 71, 71AAAB, 186, 186A
1. Criminal Law
2. › Evidence
3. › Exclusion of improperly obtained evidence
4. › Gravity of impropriety
5. › Non-compliance with statute and operational instructions
6. › Probative value
7. › Nature of offence
8. › Whether evidence should be admitted despite impropriety
9. › Evidence Act 2008 (Vic), s 138
1. Statutory Interpretation
2. › Words and phrases
3. › 'Import', 'importation', 'export', 'exportation'
4. › Whether 'import' distinct from 'importation'
5. › Presumption of consistent usage
6. › Whether terms confined to commercial dealings
7. › Customs Act 1901 (Cth), ss 30, 233BABAD
1. Customs and Excise
2. › Goods subject to customs control
3. › Personal effects of passengers
4. › Whether personal effects 'imported' or 'exported' when carried by passenger
5. › Scope of customs examination powers
6. › Customs Act 1901 (Cth), ss 30(1)(ad), 30(1)(d), 68(1)(d), 71AAAB, 186(1)

Quick Take

Personal effects carried by passengers, including mobile phones, constitute 'goods subject to the control of the Customs' under ss 30(1)(ad) and (d) of the Customs Act 1901 (Cth), and Customs officers have power to examine them under s 186(1). The terms 'import' and 'export' bear their ordinary meaning of carrying goods into or out of a country and are not limited to commercial transactions. For the purposes of s 233BABAD(1), importation is complete when goods are delivered to a point which will result in them remaining in Australia. Evidence obtained through non-compliant customs examinations may still be admitted under s 138 of the Evidence Act 2008 where the evidence is substantially probative, the offence is serious, and the impropriety relates to procedural non-compliance rather than absence of power.