Curtis v Revenue Cmr & Ag

JurisdictionIreland
JudgeMiss Justice Carroll
Judgment Date05 November 1985
Neutral Citation1985 WJSC-HC 1909
CourtHigh Court
Docket NumberNo. 12604P/1981,[1981 No. 12604P]
Date05 November 1985

1985 WJSC-HC 1909

THE HIGH COURT

No. 12604P/1981
CURTIS v. REVENUE CMR & AG
BETWEEN:-
GERARD CURTIS AND BRENDAN GEOUGH
Plaintiffs

and

THE ATTORNEY GENERAL AND THE REVENUE COMMISSIONERS
Defendants
1

Judgment of Miss Justice Carroll delivered on the 5th day of November, 1985 .

2

This action was prosecuted by the first-named plaintiff only.

3

The plaintiff was charged on the 22nd of July 1981 with two counts of being knowingly concerned in a fraudulent attempt at evasion of custom duties on certain specified goods contrary to section 186 of the Customs Consolidation Act 1876 (as amended by section 34 of the Finance Act 1963, as amended by section 44 of the Finance Act 1976) with an estimated value respectively of £27,382 and £3,970, and also with two alternative counts of being knowingly concerned in dealing with specified uncustomed goods (being the same goods with the same estimated value) with intent to defraud the Minister for Finance contrary to the same section of the Customs Consolidation Act 1876, as amended.

4

The total alleged value was £31,352. If convicted, the plaintiff would be liable to a fine of £94,056 being treble the value of the goods as provided in section 186 of the Customs Consolidation Act 1876.

5

The plaintiff disputed the estimated value and served notice on the 10th of September 1S81 pursuant to section 34(4) of the Finance Act 1963challenging the estimated value of the goods as stated in the charges. On the 13th of November 1981 these proceedings were initiated challenging the constitutionality of section 34(4)(d)(i). When the matter came before the District Justice to determine the value of the goods in accordance with section 34(4), the matter was adjourned pending the outcome of this action.

6

Section 34(4) of the Finance Act 1963provides as follows:

"The following provisions shall, notwithstanding any other enactment, have effect in relation to an offence under section 186 of the Customs Consolidation Act, 1876, section 3 of the Customs Act, 1956, or any enactment of the Customs Acts amended by subsection (3) of this section -"

(a) an estimated value of the goods shall be stated in the summons, information or charge,

(b) the defendant may, by notice to the prosecution given before the commencement of the period of four days ending immediately before the date fixed for the hearing of the proceedings in the District Court (or given later by permission of that Court) , challenge the estimated value,

(c) if the estimated value is not challenged -

(i) in case treble the estimated value exceeds one hundred pounds, the offence shall be tried on indictment, and

(ii) at the trial of the offence, whether on indictment or summarily, the estimated value shall, be taken conclusively as being the value of the goods, without any further evidence of that value,

7

(d) if the estimated value is challenged -

8

(i) the justice of the District Court shall, before proceeding with the hearing, determine the value of the goods and the value so determined shall be final and not appealable,

9

(ii) where treble the value so determined exceeds one hundred pounds, the offence shall be tried on indictment,

10

(iii) at the trial of the offence, whether on indictment or summarily, the value so determined shall be taken conclusively as being the value of the goods, without any further evidence of that value,

11

(e) in estimating or determining pursuant to this subsection the value of the goods, that value shall be taken as the price which the goods might reasonably be expected to have fetched, after payment of any duty chargeable thereon, if they had been sold on the open market at or about the date of the commission of the offence."

12

The sum of one hundred pounds mentioned in sub-paragraph (4) was increased to five hundred pounds by section 44 of the Finance Act 1976.

13

In the pleadings only sub-paragraph d(i) is challenged. However, the plaintiff's arguments, which were answered by the defendants were also directed to sub-paragraph d(iii). I have therefore considered the action as an attack on both (i) and (iii) and the pleadings can be amended accordingly.

14

The plaintiff claims that section 34(4) is unconstitutional having regard to Article 38(1) (2) and (5) and Article 34 (3) 4 of the Constitution. These provide as follows:-

15

Article 38

16

1. "No person shall be tried on any criminal charge save in due course of law.

17

2. Minor offences may be tried by courts of summary jurisdiction.

18

5. Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury."

19

Article 34

20

3. 4°. "The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law."

21

The grounds advanced by the plaintiff are as follows:-

22

1. An issue of fact has been removed from the jury. The value of the goods is an element which the jury may take into consideration in deciding whether an accused person had the appropriate mens rea i.e. a fraudulent intent to evade customs duty or being knowingly concerned in dealing in uncustomed goods. An accused is entitled to have the jury decide all the relevant facts.

23

2. A District Justice who is not competent to try the charges, is given power to decide an issue of fact from which there is no appeal. The fact, is relevant to mens rea and also determines the severity of the fine. This is contrary to Article 38(2) which gives jurisdiction to a District Justice to try minor offences but does not give power to decide an issue of fact relative to an offence which is not a minor offence.

24

3. The absence of a right of appeal against the determination of a District Justice as to value is an absence of fair procedures in that

25

(a) an accused must go to trial with a non-appealable finding of fact affecting his rights and

26

(b) after trial, the Court of Criminal Appeal is denied the opportunity on appeal of considering...

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    ...satisfied that this is not the case. I accept the applicant's submissions that, as decided by Carroll J. in Curtis v. Attorney General [1985] 1 I.R. p.458, that he has a reasonable apprehension of a determinationeffecting his constitutional rights and therefore is entitled to seek judicial ......
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