Landmark ruling for Customs

“This decision is an important win for the Customs and Excise Division since it means that for offences where prohibited goods are imported or smuggled into the country, the prosecution does not have to prove that the offender had knowledge for a successful conviction,” the division said in a statement on Wednesday.

As a result of the court’s ruling, a company and one of its employees are to face a fresh trial for importing gaming machines but falsely declaring that they were furniture on a Customs declaration form.

Canserve Caribbean Limited and Darren Nurse are to face another trial in the magistrates court after the court of appeal ruled that the magistrate erred when she upheld a no case submission in favour of the two.

Another person, Cindy Gibbs, who was charged with importing goods not corresponding to Customs declarations will not face a retrial.

This was the order of Justices of Appeal Rajendra Narine, Prakash Moosai and Mark Mohammed.

The trio were charged in violation of the Customs Act when on July 10, 2009, they allegedly imported a number of gaming machines and not furniture as was stated on the invoice.

In her decision, the magistrate held there was no evidence to prove that the gaming machines were prohibited under the Customs Act as they could not be tested.

But in their ruling, the judges said there was sufficient evidence to support the charges against Canserve and Nurse.

They also held the magistrate was wrong to find sections 213 and 214 of the Customs Act required proof of knowledge and agreed the company and Nurse ought to have been called on to answer the charges.

Mohammed, who delivered the 64 page ruling, said the magistrate also failed to consider each of the charges separately.

While the judges pointed out that almost all offences required an element of intent, they held that strict liability should be imposed by parliament and inferred in some matters.

“The offences in question deal with issues of social concern namely smuggling and revenue control and constructing them as offences of strict liability would be effective in helping to promote the objectives of the statute and in helping to promote vigilance in respect of the activities giving rise to those offences,” the judges said.

In their ruling the judges also dealt with the legal principle of the “Halfway House approach” which leaves an accused to prove he took all reasonable care to avoid conducting a criminal act.

“In our view adopting a principled approach, the alteration of such pivotal principles of criminal law and in particular, the imposition of a reverse burden of proof ought to be a mater for Parliament to consider and not for the courts to develop incrementally as a matter of law,” Mohammed stressed. Senior Counsel Gilbert Peterson represented the Customs and Excise Division while Jagdeo Singh appeared for Canserve, Nurse and Gibbs.