Nurse and Canserve Ltd v Republic of Trinidad and Tobago (Trinidad and Tobago)

Factual and Procedural Background

The First Appellant, an employee of the Second Appellant (“Company A”), signed a customs declaration in June 2009 describing the contents of a sealed container as office furniture valued at US$18,881. After the container was moved under seal to Company A’s premises, customs officials inspected it and discovered 51 gaming machines and related parts—goods whose importation is prohibited in Trinidad and Tobago. Three charges were laid against both Appellants under sections 212(a), 213(a) and 214 of the Customs Act.

The matter was first tried before a Magistrate, who held there was no case to answer because (i) the machines were inoperable and therefore not “prohibited goods” and (ii) the prosecution had not proved that the First Appellant knew the declaration was false. The Respondent (“State”) successfully appealed; the Court of Appeal ruled that all three offences are ones of strict liability and ordered a retrial. The Privy Council granted permission to appeal limited to the strict-liability issue and, if necessary, the attribution of liability to Company A.

Legal Issues Presented

1. Whether sections 212(a), 213(a) and 214 of the Customs Act create offences of strict liability or require the prosecution to prove the Appellants’ knowledge or belief as to the falsity of the declaration and the prohibited nature of the goods.
2. If strict liability is affirmed, whether the conduct of the First Appellant is attributable to Company A for criminal purposes.
3. Whether the court should recognise an intermediate or “half-way house” defence of reasonable diligence (as adopted in Canadian jurisprudence).

Arguments of the Parties

Appellants' Arguments

• The statutory language should be read subject to the common-law presumption that mens rea is required for every element of a criminal offence (Sweet v Parsley).
• Section 212(a) implicitly requires knowledge that a declaration is false; sections 213(a) and 214 similarly require knowledge of the nature of the goods and the mismatch with the declaration.
• The severity of potential penalties (large fines and up to 20 years’ imprisonment) militates against interpreting the provisions as strict liability (He Kaw Teh v R).
• Even if subjective fault is not required, the court should adopt a “half-way house” allowing a defence of honest and reasonable mistake, as in R v City of Sault Ste Marie.

Respondent's Arguments

• The wording of sections 212–214, particularly the absence of the word “knowingly” in the relevant subsections, shows that Parliament intended strict liability (Patel v Comptroller of Customs).
• Public policy demands rigorous enforcement of customs controls; strict liability promotes vigilance and deters smuggling, consistent with the principles outlined in Gammon (Hong Kong) Ltd v Attorney General.
• The Appellants could have taken practical steps (inspection, contractual safeguards) to ensure the accuracy of declarations; imposing strict liability is therefore proportionate.
• The proposed Canadian “half-way house” is a matter for the legislature, not the courts, of Trinidad and Tobago.

Table of Precedents Cited

Court's Reasoning and Analysis

The Board began with the common-law presumption that Parliament intends criminal offences to require mens rea. Applying the methodology outlined in Sweet v Parsley and Gammon, it examined:

1. Statutory Text. Sections 212–214 are largely silent on knowledge, although other subsections expressly use “knowingly,” showing that Parliament differentiated where it wished to require subjective fault.
2. Legislative Scheme and Penalties. The provisions comprise a suite of regulatory offences aimed at preventing smuggling. Although penalties are severe, their deterrent purpose and the availability of sentencing discretion mean they do not compel a mens rea requirement.
3. Public Interest and Practicality. Customs enforcement relies on accurate self-declaration. Importers can take practical steps (inspection, contractual safeguards) to avoid breaches; imposing strict liability therefore encourages vigilance and advances the statute’s purpose.
4. Potential for “Luckless Victims.” While recognising the risk of convicting those who act innocently, the Board noted that the offences still require awareness of making a declaration or importing goods; absolute liability is not imposed on entirely unwitting actors.

Balancing these factors, the Board held that Parliament intended to displace the presumption of mens rea for the elements in issue, rendering the charged offences strict liability. Consequently, the proposed “half-way house” defence would entail a major policy shift better left to legislative action.

On attribution, Company A conceded liability should strict liability be affirmed, making further analysis unnecessary.

Holding and Implications

APPEAL DISMISSED. The Privy Council affirmed the Court of Appeal’s decision that sections 212(a), 213(a) and 214 of the Customs Act create strict-liability offences and remitted the matter for retrial.

Immediate effect: the Appellants must stand trial without raising a defence based on lack of knowledge of the container’s contents. Broader implications: the judgment clarifies that Trinidad and Tobago’s customs offences may impose strict liability where the statutory context demands, and lower courts should assess mens rea questions using the Gammon/Sweet v Parsley framework. No new defence or alteration of burden of proof was recognised; any such reform is for Parliament.