Convery, J.A. v Ziino, C

[1985] FCA 644

b44

Adminlstrative law - ~udiclal review - application to seize a

yacht as forfeited under the Customs Act 1901 - whether the yacht

was used in the conveyance of goods within the meaning of

S.Z29rl)(j) of the Customs Act, 1901.

Administrative Decisions (Judicial Review) Act	1977, 5.5.
Customs Act 1901, s.229(1)(~~.

Forbes v Traders Fmance Corporation Limited (1971) 12.6 C.L.R. 429

Jennlfer Ann Converv and Anthonv John Lund	v Chrlstopher Zllno
G 99 of 1985
Sweeney, J.
20 December, 1985
Melbourne

IN THE FEDERAL COrJRT OF AUSTRALIA )

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NEW Y O U T H WALES DISTRICT REGISTRY	)	NO. G 99 of 1985
l

GENERAL DIVISION l

Between: JENNIFEF	ANN CONVERY	First Appllcant
and

ANTHONY JOHN LUND Second Appllcant

and

CHRISTOPHER ZIINO Respondent

THE COURT: Sweeney J.

: 20 December. 1985

PLACE : Melbourne

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. the declslon of the respondent be set aside;

2. the yacht be returned to the applicants forthwith;

3 . the respondent pay the costs or the appllcants, including

2.

reserved costs.

Note: Settlement and entry of orders is dealt wlth In Order

36 of the Federal Court Rules.

IN THE FEDERAL COIJRT (IF AIJSTRALIA	I
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G 99 of 1985
)

GENERAL DIVISION )

Between: JENNIFER ANN CONVERY Flrst Applicant

and

ANTHONY JOHN LUND Second Applicant

and

CHRISTOPHER ZIINO Respondent

THE COURT: Sweeney J.

: 20 December, 1985

PLACE : Melbourne

Reasons for Judqment

Sweeney J.

This is an application under section 5 of the Administrative

Decisions Judicial Review Act 1977 ("the Judicial Review Act")

seeking review or a declsion ("the decision") made on 27 March

1985 by the respondent, an offlcer of the Australian Federal

2.

Pollce, to seize as forfelted under the provlslons of the Customs

Act 1901 ("the Customs Act") the yacht "Peregrine" ("the yacht").

When It was selzed, on 27 March 1985. the yacht was lying at its moorlngs at Careel Bay, Pittwater. Searches disclosed that there were on board 2.254 kilograms of cannabls resln ("the goods"), a "bong", and six brass scales.

Lund admitted that he was the owner of the goods and stated

that Convery was unaware of thelr presence. She denied any

knowledge of thelr presence and was not cross-examlned on her

denial. The yacht was bought by the applicants Convery and Lund In July 1984 for $23,000. There were two verslons of thelr respectlve contrlbutlons to the purchase prlce. Convery provided

elther $20,000 or $18,000 and Lund contributed the balance. BY

February 1985 they had rendered the yacht habltable and moved on

board, with Convery's daughter. Convery's evldence was that

between the dates of purchase and seizure the yacht had left Its

mooring only on three occasions, for no longer than half a day on

each occaslon.

The respondent sought to justify the seizure of the yacht on

the basis that it was used in the conveyance of the goods. within

the meaning of s.229(1) of the Customs Act 1901, as construed by

the Hlgh Court in Forbes	v Traders €lnance	Corporation	Limited
(1971) 126 C.L.R. 429.

The relevant provisions of the Customs Act are-

5.203 (1) .....

3 .

( 2 ) An authorized person may seize any forfeited goods

or any goods that he believes on reasonable grounds

are forfeited goods.

5.229	( 1 ) The following goods shall be forfeited to the
Crown :

...

(j) Any carriage or animal used in smuggling or in

the unlawful importation, exportation, or

conveyance of any goods.

Under 5 . 4 , "carriage" includes vehicles and conveyances of

all kinds.

In Forbes, case a passenger from an aircraft which had landed

at Sydney Alrport had brought with hlm two sultcases containing

birds, the importation of whlch was prohlbited. On arrlval he was

met by a man who took one of the suitcases from him. The two men

placed the suitcases on the back seat of a car. When they were

'

apparently about to get into the car to drive off, but before they

did so, they were apprehended by Customs Investigators.

The High Court held, by a majority of three to two, that the

car was being "used in the conveyance" of the birds within the

meaning o t s.229(j) of the Customs Act 1901.

Windeyer J., with whom Barwick C.J., and Owen J., agreed,

sald tat p.446):

4.

'I... I have come to the conclusion that a

vehlcle u ed is the in unlawful

conveyance of goods ~f they be loaded

upon it In immediate preparatlon for

their conveyance in It. The phrase used

In u lawful conveyance d scribes 1'

conslder all actlvlties that are

proxlmate and essentil parts of the

process by whlch a carrlage or animal 1 s used in conveylng. The use postulated 1 s a purposive use forming part of a planned

course of conduct, a 'planned adventure'

...

The members of the minority (Menzles and Gibbs JJ.r,

rejected the contention that the use of the motor car as descrlbed constituted its use as a conveyance of the blrds. Gibbs J., at p.448 said:

"To load goods on to a stationary vehicle

preparatory to conveylng them thereln is

not, In my opinion, to use the vehicle in

thelr conveyance; the conveyance of the

goods, and the use of the vehicle in

their conveyance, commence only when the

vehlcle 1 s moved with the goods aboard

It. "

In the present case, there was a conflict between the

evidence given by the applicants and them statements to the

police made on the nlght of the seizure. Canvery said in her

statement hat hey "were hoplng to leave for the

Whitsundays. We were getting ready for it	now, withln	a
couple of weeks". Lund said:-

"I have done a lot of work on It (the yacht) and we were

going to sail it up the Whltsunday Passage in a couple

of weeks for a holiday."

5 .

Despite the evidence to the contrary, I am satisfied that on the

night of the selzure each appllcant had the general lntentlon to

leave “wlthln a couple of weeks“, but havlng regard to their

llfe style and personal attltudes, as revealed In the witness box,

I am of opinion that this was no more than a rough estimate.

I am satisfied that they did not Intend to leave untll they

had carried out the work on the boat which they regarded as

deslrable. Much would have depended on the appllcatlon and energy

of Lund in carrying out that work, both of which qualities seemed

to me to be quite dubious. Had there been no raid and seizure,

their departure would probably have taken place at a time later

than thelr estlmatc, which it	1 s not possible	to	f l x with any
confidence.

The facts of this case are a far cry from the loading of the

car in immediate preparation for the conveyance of the blrds and

the imminent departure of the car In Forbes‘ case, carrying

suitcases of blrds whose chance of survlval depended upon thelr

speedy transport. As it was,.about half of them were found to be

dead when the sultcases were opened. The boat dwellers of Careel

Bay were living at a different tempo from the	bustlmg	bird
smugglers at Sydney Alrport.

In my oplnion, the yacht was not used In the conveyance of

the goods wlthin the meaning of s.229(j). The parties agreed that

the outcome of the case turned upon the answer to this questlon.

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Accordingly, the court orders that:

1. the decision of the respondent be set aslde;

2. the yacht be returned to the applicants forthwith;

3 . the respondent pay the costs of the applicants, including reserved costs.

I certify that this and the

preceding five (5) pages are a true copy of the Reasons for

Judgment The h rein of

Honourable Mr. Justice Sweeney.

Dated:	20 December, 1985
. .W . +. . . . . . . .

Assoc ate