Gocking and Gocking v Payne and Daniel
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J.A. |
| Judgment Date | 24 May 2016 |
| Neutral Citation | TT 2016 CA 25 |
| Docket Number | Mag. App. No. P 085 of 2014 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 24 May 2016 |
Court of Appeal
Weekes, J.A.; Mohammed, J.A.
Mag. App. No. P 085 of 2014
Mr. Ravi Rajcoomar instructed by Mr. John Heath for the appellants.
Mr. Jonathan Soo-Hon for the respondent.
Criminal Practice and Procedure - Appeal — Offences contrary to the Customs Act, Chapter 78:01 — Whether the magistrate exceeded her jurisdiction when she ordered that a summons to appear addressed to the appellants be served out of the jurisdiction and that the service be effected by the Central Authority of the Office of the Attorney General — Whether the magistrate erred in law or committed a specific illegality by proceeding to trial without evidence on oath of service in that the defendants were wilfully avoiding service and that service was affected by an authorised officer within the meaning of the Summary Courts Act section 43(3) — Whether the magistrate erred in law when she proceeded to hear complaints without the consent of the appellants in breach of the Summary Courts Act, Chapter 4:20 section 64(2) — Whether the magistrate failed to give reasons notwithstanding that the appellants filed a Notice of Appeal.
The appellants Clint and Troy Gocking, after the summary trial of twelve (12) complaints _preferred against them which were heard together, were found guilty of ten (10) offences contrary to the Customs Act, Chapter 78:01. Two condemnation orders were, in addition, made. All of the complaints were connected with the importation in 1998 of two left-hand drive Lincoln Navigator motor vehicles and the relevant documentation which was tendered for customs and excise purposes and which included claims for certain exemptions.
The following are summaries of the twelve (12) complaints preferred against the appellants. In italics, at the end of each summary, is a synopsis of the fine imposed and/or the order made by the magistrate.
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(i) No: 9320 of 2001 — Clint Gocking on the 3rd and 4th April, 2001 wilfully used a false document to have Customs Duties and Taxes assessed and paid on one used 1998 Lincoln Navigator, contrary to section 212(d) of the Customs Act, Chapter 78:01.
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Fined- $25,000. 00 or 6 months hard labour.
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(ii) No: 9321 of 2001 — Clint Gocking on the 5th April, 2001 was knowingly concerned in a fraudulent attempt at the evasion of import duties and taxes on one Lincoln Navigator, contrary to section 213(e) of the Customs Act, Chapter 78:01.
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Fined- $25,000. 00 or 6 months hard labour.
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(iii) No: 9322 of 2001 — Clint Gocking on the 17th March, 2001 imported certain prohibited goods to wit: one used Lincoln Navigator, contrary to section 213(a) of the Customs Act, Chapter 78:01.
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Fined- $4,755,025. 86 or 12 months hard labour.
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(iv) No: 9323 of 2001 — Clint Gocking on the 5th April, 2001 made a false declaration as to the price actually paid for one used Lincoln Navigator, contrary to section 212(a) of the Customs Act, Chapter 78:01.
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Fined- S125,000. 00 or 12 months hard labour.
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(v) No: 9324 of 2001 — Clint Gocking on the 5th April, 2001 made a declaration for the consideration of the Comptroller that is untrue to wit: that he returned to live permanently in Trinidad and Tobago; that he was the owner of one used Lincoln Navigator; and that the said vehicle is for his personal use, contrary to section 212(b) of the Customs Act, Chapter 78:01.
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Fined- $125,000. 00 or 12 months hard labour.
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(vi) No: 9325 of 2001 — Troy Gocking on the 5th April, 2001 was knowingly concerned in a fraudulent attempt at the evasion of import duties and taxes contrary to section 213(e) of the Customs Act, Chapter 78:01.
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Fined- $25,000. 00 or 6 months hard labour.
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(vii) No: 9326 of 2001 — Troy Gocking on the 3rd and 4th April, 2001 wilfully used false documents to have Customs Duties and Taxes assessed and paid on one used 1998 Lincoln Navigator contrary to section 212(d) of the Customs Act, Chapter 78:01.
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Fined- $25,000. 00 or 6 months hard labour.
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(viii) No: 9327 of 2001 — Troy Gocking on the 5th April, 2001 made a declaration for the consideration of the Comptroller that is untrue to wit: that he returned to live permanently in Trinidad and Tobago; that he is the owner of one used Lincoln Navigator; and that the said vehicle is for his personal use, contrary to section 212(b) of the Customs Act, Chapter 78:01.
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Fined- $125,000. 00 or 12 months hard labour.
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(ix) No: 9328 of 2001 — Troy Gocking on the 5th April, 2001 made a false declaration as to the price actually paid for one used Lincoln Navigator contrary to section 212(a) of the Customs Act, Chapter 78:01.
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Fined- $125,000. 00 or 12 months hard labour.
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(x) No: 9329 of 2001 — Troy Gocking on the 17th March, 2001 imported certain prohibited goods to wit: one used 1998 Lincoln Navigator contrary to section 213(a) of the Customs Act, Chapter 78:01.
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Fined- $4,755,025. 86 or 12 months hard labour.
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(xi) No: 9248 of 2001 — Clint Gocking; related to condemnation proceedings.
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Condemnation Order made.
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(xii) No: 9249 of 2001 — Troy Gocking; related to condemnation proceedings.
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Condemnation Order made.
On the 2nd April, 2001, the appellants arrived at Piarco International Airport in Trinidad from New York and declared on their immigration cards that the purpose of their stay was to visit friends in Trinidad for seven (7) days.
On the 5th April, 2001, while in Trinidad, the appellants then attempted to import the Lincoln Navigator motor vehicles and made certain declarations on the relevant C 82 and C 84 customs forms, to the following effect:
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a) that they were returning to Trinidad to live permanently;
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b) that they were importing the motor vehicles for their personal use; and
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c) that the purchase value for each vehicle was in the sum of US$25,500.00.
An initial examination by the Customs Officers revealed that the vehicles were partly armoured and heavily modified. Further investigations ensued and revealed the following:
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a) that the correct value of each vehicle, as indicated by the relevant invoice from the Computer Spy Shop in New York where the 2 vehicles were purchased, was US$150,000.00;
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b) that the vehicles were not owned by the appellants nor were they imported for their personal use; and
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c) that the correct duty to be paid on the vehicles was 45% and not the 33.73% charged due to the exemption granted.
The appellants left Trinidad on the 10th April, 2001 to return to the United States.
On the 27th April, 2001, Customs Officer Fitzgerald Daniel issued to the appellants by registered mail, a Notice of Seizure for the two (2) vehicles.
Summonses to appear at the Port of Spain Magistrate's Court were personally served on the appellants in New York, United States of America on three (3) separate occasions in 2005, 2006 and 2007 as follows:
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(a) Clint Gocking on the 13th May, 2005 and Troy Gocking on the 9th May, 2005;
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(b) Clint Gocking on the 14th December, 2006 and Troy Gocking on the 6th December, 2006; and
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(c) Clint Gocking on the 27th August, 2007 and Troy Gocking on the 28th August, 2007.
At its very widest, the Customs and Excise Division were alleging a conspiracy to evade the payment of Customs duties orchestrated in the main by the appellants' uncle, “M.G.” and executed with the appellants' knowing participation at various stages.
At the magistrate's Court, the appellants were represented by Defence Counsel. When the magistrate enquired as to whether the complaints were going to be tried jointly, counsel representing the Customs and Excise Division responded in the affirmative but the transcript contains no reflection of a response by Defence Counsel. (See Record of Appeal at page 159, lines 8-10).
At the joint trial of all of the complaints, the uncle of the appellants, “M.G.” was not called to give direct oral evidence. He had died at some point between 16th January, 2008 and 12th March, 2008. In addition, important documentary material relating to the purchase of the two vehicles in the United States and their correct value, for some indiscernible reason, while marked for future use, was never properly exhibited before the magistrate. The entire evidential substratum of many of the complaints was therefore missing. To exacerbate matters and as revealed in her contemporaneous oral reasons, the
Magistrate relied on at least some of the inadmissible material in coming to her conclusions.
The grounds of appeal that were filed on behalf of the appellants did not focus on the major evidential lacuna in the customs case. At the hearing of the appeal on 20th July, 2015, this lacuna engaged our scrutiny. We probed Mr. Soo-Hon, who represented the respondent in this matter and he conceded that eight of the twelve convictions, on the evidence as it stood before the magistrate, were not sustainable. A material error had occurred on account of the impermissible introduction of hearsay evidence (from the witness statement of “M.G” and from trade/business invoices) via the re-examination of Customs Officer Anthony Payne. On the 20th July, 2015, we accordingly allowed the appeals with respect to those eight (8) matters, quashed the convictions and set aside the sentences. We suspended our determination of whether re-trials should be ordered on those eight matters pending the delivery of our decision with regard to the four (4) remaining complaints.
The four (4) remaining complaints, which were not reliant on the account of “M.G.” and/or the invoices and thus not affected by the material error adverted to in paragraph 12 above are:
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a. No. 9322 of 2001 — this complaint relates to Clint Gocking and the importation of prohibited goods, (namely, the vehicle) contrary to section to 213(a) of the Customs Act, Chapter 78:01.
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b. No. 9329 of 2001- this complaint relates to Troy Gocking and the...
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