Judge reserves decision over imported antiques

Press, 24 January 1986, Page 5

Judge reserves decision over imported antiques

Special correspondent A decision has been reserved in a case in the District Court at Dunedin where the Customs Department alleges an Ashburton company and its two directors were smuggling and inflating the value of imported antiques. Charged are Jayar Trading Company, Ltd, a furniture and antique dealer of Ashburton; James Hepburn Lawrie, aged 45, a company director of Ashburton, and Richard Alan Henry Baird, aged 43, a company director of Ashburton.

Judge Blaikie presided over the civil hearing and Mr W. J. Wright appeared for the Crown. The defendants were represented by Mr K. C. Marks. Jayar Trading Company has pleaded guilty to four charges of smuggling, not guilty to six charges of defrauding customs of duty; guilty to four charges of defrauding customs of sales tax; not guilty to six charges of making an erroneous customs entry; guilty to six charges of producing an erroneous document, and guilty to four charges of importing prohibited goods. J Baird had pleaded guilty to four charges of smuggling; not guilty to six charges of defrauding customs of duty; guilty to four charges of defrauding customs of tax; not guilty to six charges of making an erroneous entry; not guilty to six charges of producing an erroneous document, and guilty to four charges of importing prohibited •5* !-

Lawrie has pleaded guilty to four charges of smuggling, not guilty to four charges of defrauding Customs of sales tax, and not guilty to four charges of importing prohibited goods.

The Crown accuses the Jayar Company and the two other defendants of importing antiques and Edwardian furniture by allegedly inflating the price of the antiques and lowering the price of the Edwardian and thereby avoiding duty. The charges result from a Customs swoop on their offices in 1983 when they were based in Princes Street, Dunedin. The company has since moved to Ashburton.

At the close of the prosecution case, Mr Marks submitted the sections under the Customs Act on which the charges were laid made it clear the various defendants, with intent to defraud customs revenue, undervalued certain items of furniture. What had not been shown was that the items of furniture were the same items that appeared on the original Invoice and it was crucial for the 'prosecution to show the items were the same. If they were not the same it would be Impossible to say they had been undervalued. It was an essential element of the Crown case that specific items of Edwardian (furniture) be identified and that they were under-valued. The only way the Crown could prove this was to show they were the specific items and the purchase price was reduced. Mr Marks said ./the .. .4

Crown was not able to say the Edwardians that had been reduced were the same items and therefore the charges laid under section 243 of the act, defrauding Customs of duty, must fail.

The other element was the question of intent “Even if you accept they are the same items, and I submit you cannot defrauding Customs intentionally is not a matter which can be presumed in any of the provisions of the Customs Act” Mr Marks said. There was not even a prima facie case of intent unless the Crown was able to hold the goods had been under-valued and the defendants intended to defraud Customs of revenue.

Speaking of the delay between the date of the Customs seizure, June 1983, and the time it took the informations to be laid, late 1985, Mr Marks said it was quite clear that under the act the Crown had up to three years to file the informations.

It had, however, been upheld in another case that the Crown had a duty to act as soon as reasonably practical so the defendant was not prejudiced by any unexplained delay. .

“There is clearly an unexplained delay because all the information to lay charges was available at the end of 1983 and in spite of that the informations were not laid until the end of 1985. This has not been explained adequately and evidence on recollection, is clearly prejudiced,” Mr Marks said. The general proposi-

tions of abuse of process relating to unexplained delay had a great deal more force when the statute imposed the burden on the defendant, he said. Speaking to the charges alleging erroneous Customs entries and producing erroneous documents, Mr Marks said it could be perceived the Crown had laid the charges as alternatives because they arose out of the same documents. The whole thrust of the Crown case regarding the documents pertained to undervaluation of dutiable items and unless the Crown could show the Edwardians imported on stated values were the same as the items on the original invoices, there was no prima facie case. In his submissions, Mr Wright said the allegation of delay gave the Court no reason or authority to dismiss jurisdiction.

In relation to the declaration charges relating to the Edwardian furniture, as long as the declaration in itself was erroneous, it mattered not in what particular aspect the error occured, he said. “The short answer to this submission is that there is evidence before the Court in the case of load W.T. and this means the Court would have to accept as a reasonable possibility that every EdWardian item has been replaced, stickers removed, and, in all cases, substitution has occured,” Mr Wright said. The substitution would have had to be of Edwardian furniture by —C- — —

Edwardian furniture of a lesser value but by the same description and the same number.

However, this would not explain why there had been an uplift in antique* items as they happened to balance out and this stretched credulity to its extreme.

“The evidence shows a curious state of affairs — items are being brought in on invoices which are Roberton invoices; they are apparently being costed on that basis and they are being paid for on that documentation.”

Mr Wright was prepared to make no concession on Mr Marks’ assertion of charges being laid in the alternative.

“For the purposes of prosecution they are closely linked. I would not ask for convictions on both but I do perceive the distinction between them,” he said.

Mr Marks rose again to draw the Judge’s attention to Mr Wright’s comments on delay. He pointed out the ruling in Forestry v. Hutton in the District Court at Alexandra in 1984, which ruled on unexplained delay.

Mr Marks said the ruling indicated that in the course of the delay a defence witness had died and the case had been dismissed on the grounds the defence had been irreparably prejudiced. After an adjournment Judge Blaikie returned saying he held there was a case to answer in relation to all charges where a plea of not guilty had been entered.