Forbes v Traders' Finance Corporation Ltd

[1971] HCA 60

HIGH COURT OF AUSTRALIA

Barwick C.J., Menzies, Windeyer, Owen and Gibbs JJ.

FORBES v. TRADERS' FINANCE CORPORATION LTD.

(1971) 126 CLR 429

26 November 1971

Customs

Customs—Forfeited goods—Carriage used in unlawful importation or conveyance—Whether knowledge of use by owner of carriage essential—Goods unlawfully imported by air placed in stationary vehicle—"Unlawful importation"—Whether vehicle must be used to bring goods from air to land—"Unlawful conveyance"—Whether vehicle must move with goods aboard—Customs Act 1901-1968 (Cth), s. 229 (j)*.

Decisions

November 26.
The following written judgments were delivered:-
BARWICK C.J. In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Windeyer. I entirely agree with the conclusions at which he has arrived and with the reasons which he has expressed for them. I would merely add for myself that "importation" extends on both sides of the actual act of importing goods into the country. The importation does not cease at the moment of an import. But the relevant use of a vehicle must be proximate to the act of importing. Whether it is so or not is a question of degree for decision in the particular case. In the present case the use made of the car in question was in my opinion sufficiently proximate to the act of importing the goods for it to be said that the vehicle was used in their importation. In the case of the use of a vehicle in the "conveyance" of prohibited goods there is no similar question of proximity because the goods always retain their character of prohibited imports. No hard and fast line can be drawn between importation of prohibited goods and their conveyance. There must, in my opinion, necessarily be an overlapping. The presence in the paragraph of the two expressions "use . . . in the . . . importation . . . or conveyance" does not mean that the two processes are mutually exclusive at all times and in all situations. When the use of a vehicle in the importation of the goods ceases to be proximate to the point of their import the overlapping will cease. (at p432)

2. In my opinion, the appeal should be allowed. (at p432)

MENZIES J. The respondent - which I shall call "the owner" - at the instance of the appellant, the Collector of Customs for the State of New South Wales, pursuant to s. 207 of the Customs Act 1901-1968 (Cth), sued the Collector to recover a motor car which it owned and which had been seized as forfeited pursuant to s. 229 (j) of the Act. That provision is as follows:

"The following goods shall be forfeited to Her Majesty:- . . . (j) Any carriage or animal used in smuggling or in the unlawful importation, exportation, or conveyance of any goods." (at p432)

2. The action succeeded, the learned judge of the District Court, having read into the foregoing provision, between the words "or" and "any", the words "knowingly used", and then having found, correctly enough, that the owner had no knowledge of any use of the motor car that would otherwise bring it within the scope of s. 229 (j). (at p432)

3. The first contention on behalf of the Collector was that the learned judge was in error in importing knowledge as a necessary element of the user, to which s. 229 (j) relates. With that contention I agree. It would appear that the learned judge looked at s. 228 (1) of the Act and remodelled s. 229 (j) in the fashion of the earlier provision. There is no warrant for so doing. The provisions of the Customs Act regarding forfeiture are indeed drastic, but they are provisions with a long history and, except where it is provided, either expressly or by necessary implication, that forfeiture is conditional upon knowledge of what has been done, proof of the act is sufficient and it is not for the court to import knowledge as an amelioration to mitigate the hardness of the statute. (at p433)

4. The learned judge reached his conclusion after consideration of a well-known line of cases relating to the necessity for mens rea as an element in statutory offences, but those cases have no application here. Not only is there no warrant in the statute for the construction adopted by the learned judge, it is opposed to convincing authority in relation to forfeiture under revenue laws. Instances are De Keyser v. British Railway Traffic and Electric Co. (1936) 1 KB 224 ; Lord Advocate v. Crookshanks (1888) 15 Rettie 995; 25 ScLR 705 ; and Little's Victory Cab Co. Pty. Ltd. v. Carroll (1948) VLR 249 . In the Scottish case the Lord President said (1888) 15 Rettie, at p 998; 25 ScLR, at p 707 :

"The success of the application of course would depend on the terms of the statute providing for forfeiture. The words of s. 202 of the statute are that 'all ships, boats, carriages, or other conveyances, together with all horses and other animals and things made use of in the importation, landing, removal, or conveyance of any uncustomed, prohibited, restricted, or other goods liable to forfeiture under the Customs Acts, shall be forfeited.' Now, these words admit of no construction but one. If the things specified, among others cabs and horses, are used to convey uncustomed goods, the statute provides that they shall be forfeited. It is not necessary to make any allegation against any person to the effect that he has committed an illegal act. The mere fact that the cab and horse have been used in the particular manner referred to in the statute is a sufficient ground for forfeiture."

Later, having referred to other statutes containing provisions to enforce penalties, the Lord President said (1888) 15 Rettie, at p 999; 25 ScLR 705 ;

"Some of these require guilty knowledge, others do not. Here the penalty follows on the fact that the goods have been used in a particular way, and no question of innocence on the part of anyone arises."

Lord Shand, in referring to the argument that words such as "with the knowledge of the owner of the illegal use thereof" should be regarded as a condition of forfeiture, said (1888) 15 Rettie, at p 999; 25 ScLR 705 ;

"But there are no such terms in the statute, and from beginning to end of the clause I see nothing to indicate by way of implication or inference that anything of the kind was intended." (at p434)

5. Having rejected the construction of s. 229 (j) that led to the success of the owner's claim in the District Court, it is unnecessary to consider whether, if that construction had been upheld, the lack of knowledge on the part of the owner itself about the use to which its motor car was being put, would have been sufficient to exclude the operation of s. 229 (j), or whether, to succeed, it would have been necessary to negate knowledge on the part of the person in fact using the motor car. This difficulty is, however, an added reason for rejecting the construction adopted by the learned District Court judge. (at p434)

6. The rejection of the construction of s. 229 (j), so adopted, does not, however, dispose of the appeal. It leaves outstanding the question whether, upon the facts, the owner's motor car was used in the unlawful importation or conveyance of any goods. It is convenient to state these facts before considering further the meaning of s. 229 (j). (at p434)

7. The motor car owned by the company was in the possession of one Visscher, under a hire-purchase agreement. Visscher drove the car to the Kingsford-Smith Airport on 1st July 1969 and parked it there. On the same day one Fitzgerald was a passenger upon a Qantas incoming flight to the airport and had, in the aeroplane as passenger luggage, two suitcases which, as subsequently appeared, contained prohibited imports, viz. birds. After landing, Fitzgerald took his suitcases through customs without inspection and was carrying them towards a parking area at the airport where the motor car was. He was met by Visscher, who took one of the cases. The two of them proceeded to the car and put them in the back seat. Customs officers then intervened before either Visscher or Fitzgerald had got into the car. A customs officer then drove the car to the customs house where the suitcases were opened and the birds discovered. (at p434)

8. Upon these facts it is quite clear that Visscher drove the car to the airport and parked it there for the purpose of using it to take away prohibited imports. However, the only use actually made of the car, other than Visscher's use of it to bring it to the airport, was that the suitcases were put into it. The problem is whether such use as was made of the car was in the unlawful importation or conveyance of the birds. (at p434)

9. I will deal first with importation. There is no doubt that the birds were unlawfully imported by Fitzgerald, so, if what occurred amounted to use of the car in their importation, the car was forfeited. As I see it, what requires consideration is whether the taking of the car to the airport and parking it there to receive the birds, and the putting of the suitcases into the back seat of the car, or either of these actions, was use of the car in the importation of the birds. (at p435)

10. It is necessary to keep in mind the distinction that the Act makes between the unlawful importation of goods and their unlawful conveyance after they have been imported. This distinction appears not only in s. 229 (j) itself, but it appears in provisions such as s. 210. It is clear that the use of a motor car in one way or the other will result in forfeiture. In the case of the former, because of use in the unlawful importation of goods; in the case of the latter, because of use in the unlawful conveyance of the goods after importation. At present I am only dealing with the former. (at p435)

11. In the first place I am satisfied that driving the car to the airport and parking it there in readiness to take the birds away was not a use of the car in the importation of the birds. It was not proposed to use the car in the importation; it was proposed to use it for the conveyance of the birds after their importation. Had it been used as intended, and had the car been stopped a mile from the airport, I do not think it would have occurred to anyone, knowing the circumstances, to say that the car had been used in the importation of the birds; but it would have been apparent that it was used for their conveyance after importation. (at p435)

12. The next question is whether, by putting the suitcases in the car for removal, the car was used in the importation of the birds. (at p435)

13. It may be that there are circumstances in which it would be difficult to say whether or not a carriage had been used in the importation of goods, e.g. where goods are taken by trolley from an aeroplane to the terminal. Here, however, it seems to me that no fine distinction is necessary, for the birds had been imported before the suitcases were put into the motor car. I accept the argument of counsel for the owner that, in the circumstances here, the birds had been imported, at the latest, when Fitzgerald obtained his suitcases to take them away from the customs hall. Counsel supported his argument by reference to a number of cases, but it is sufficient, I think, to refer to one, Wilson v. Chambers &Co. Pty. Ltd. (1926) 38 CLR 131 . There a unanimous court decided that paint, which had been brought into the Port of Kembla by ship for discharge there, had been imported although, in the event, it never left the ship because it was taken over by the captain and put into ship's stores. Knox C.J. said (1926) 38 CLR, at p 136 ,:

"The Act contains no definition of the meaning of the word 'imported' but I think Mr. Mitchell was right in the view he put forward that goods are imported whenever they are brought into port for the purpose of being discharged there. So far as the ship is concerned the goods have at that time arrived at their destination, and their character as goods imported into Australia cannot, I think, be affected by an agreement subsequently made under which they are not in fact landed at the port at which the ship arrived."

Other members of the court spoke similarly. This authority would indeed establish that the birds were imported at a time before Fitzgerald got his suitcases and left the terminal and it is because of this that earlier in this judgment I said that, at that point at the latest, the birds had been imported. Indeed, the decision in Wilson v. Chambers &Co. Pty Ltd. (1926) 38 CLR 131 may leave little room for the operation of the words ". . . carriage or animal used . . . in the unlawful importation . . ." in s. 229 (j). (at p436)

14. However that may be, the earlier it was that the birds were imported, the less justification can there be for treating the putting of the suitcases into the car as a use of the car in the importation of the goods. The distinction between importing prohibited goods and conveying prohibited imports is one that supports what ordinary usage would suggest. For these reasons I reject the contention that the car was used in the importation of the birds. (at p436)

15. I find greater difficulty with the next problem, i.e. whether the car was used in the unlawful conveyance of the birds. The word "unlawful" in s. 229 (j), in relation to the word "conveyance", must, I think, be understood as meaning "unlawful by reason of this Act". The fact that the conveyance of birds along streets might be prohibited by the Local Government Act would, for instance, not make the conveyance of the birds unlawful for the purposes of s. 229 (j). There is, however, a provision in the Act expressly making it unlawful for a person to convey, without reasonable excuse, any prohibited imports. It is s. 233 (2), and, if there was a breach of that subsection, the use of the car in the conveyance would work a forfeiture under s. 229 (j). It seems to me that s. 229 (j) and s. 233 (2) pose exactly the same problem for decision here, namely, was there a conveyance of the birds in the use of the car by the putting of the suitcases into the back seat? I think not. I do not think that any person could have been convicted under s. 233 (2) of a breach of the prohibition against conveying by reason of the only use that was made of the car, viz. to receive the suitcases. If there were a breach of s. 233 (2) it was because Fitzgerald and Visscher had the birds in their possession both before and after they put the suitcases into the car. In this subsection a distinction is drawn between having in possession and conveying. (at p437)

16. It was, of course, intended, both by Visscher and Fitzgerald, to use the car in the unlawful conveyance of the birds, but that is not enough. To the question whether there was a use of the car to convey the birds, I would, as I have said, return a negative answer. Let it be supposed that the birds, having been put into the car, the men decided to take a taxi instead of using the car for their conveyance and took the suitcases out of the car. Could it be fairly said that the car had been used to convey the birds? (at p437)

17. Here we are concerned with a drastic provision which would, in certain circumstances, effect forfeiture of the car without any fault on the part of its owner. A well established principle of construction is that provisions imposing forfeiture must be construed strictly. To apply s. 229 (j) to the act of putting goods in a car for their conveyance would be to construe it broadly with an eye to stamping out breaches of the Act, which is notoriously difficult to enforce against persons who may stand behind those who actually break it. It is this sort of difficulty that, as a matter of legislative policy, justifies provisions for forfeiture which may fall heavily upon the just as well as the unjust. However, it is not for the courts to aid that legislative policy by a benevolent construction of provisions effecting forfeiture. (at p437)

18. Construing s. 229 (j) strictly, as I must, I reject the contention that the motor car was used in the conveyance of the birds. (at p437)

19. I would therefore dismiss the appeal. (at p437)

WINDEYER J. The question in this appeal is whether a motor car belonging to the respondent became forfeited to the Crown by being used in contravention of the Customs Act 1901-1968 (Cth) as the appellant Collector of Customs claims. (at p437)

2. The respondent is a finance company which conducts a hire purchase business. In April 1969 it, as owner of the motor car in question, let it on hire purchase to one F. J. Visscher. On 1st July 1969 Visscher having parked this car at Sydney Airport awaited there the arrival of a Qantas plane from Singapore. One of the passengers on the incoming plane was one K.J. Fitzgerald, a confederate of Visscher. He was bringing to Australia a number of small birds concealed in two suitcases. The unfortunate creatures were without ventilation and were surrounded by a layer of some material described as foam which the Customs investigator who gave evidence said was "usual to prevent the Customs officers hearing the birds". By reg. 4 of the Customs (Prohibited Imports) Regulations and the Schedule thereto the importation into Australia of "birds of all kinds" is prohibited unless the permission in writing of the Minister has been granted. After the aircraft had landed, Fitzgerald by presenting his baggage checks in the usual way obtained possession of his two suitcases. He went with them through the Customs hall in the overseas terminal building. The Customs officers on duty there regarding the suitcases as personal baggage not suspecting them to contain contraband did not require that they be opened. But the Customs authorities had been alerted to what was afoot, and two Customs investigators were watching Fitzgerald's movements. He left the airport building carrying the suitcases and walked with them towards the car parking area. On his way there Visscher met him and took one of the suitcases from him. They walked together to where Visscher had left the car. They put the suitcases on the back seat of the car. When they were apparently about to get into the car to drive off, but before they did so, they were apprehended by the Customs investigators. The car with the suitcases aboard and the two men accompanied by two Customs officers, one of them driving, was then driven to the Customs House. There the suitcases were opened, and the birds, about half of them dead, were discovered. Visscher and Fitzgerald were subsequently charged and convicted of offences under s. 233 of the Act - the former of having prohibited imports in his possession, the latter of importing prohibited imports. (at p438)

3. The car was detained and a notice in writing was, pursuant to s. 205 of the Act, given to the respondent, its owner, stating that it had been seized "as forfeited to Her Majesty . . . for the cause that the vehicle was used in the unlawful conveyance of prohibited imports". Thereupon, after correspondence in which the respondent challenged the validity of the seizure, the Collector of Customs, in accordance with s. 207 of the Act, required the owner to commence proceedings. The respondent did so by becoming the plaintiff in an action in the District Court in Sydney alleging that the appellant had detained the vehicle, claiming its return and damages for the detention. The appellant, as defendant in the action, filed a defence relying upon the Act and regulations and alleging that before the action was commenced the vehicle was forfeited "being a carriage used in smuggling or in the unlawful importation or conveyance of goods namely certain birds, the importation of which was prohibited . . .". (at p439)

4. Section 229 of the Act is, so far as presently relevant, as follows:

"The following goods shall be forfeited to Her Majesty: - . . . (j) Any carriage or animal used in smuggling or in the unlawful importation, exportation, or conveyance of any goods."

This refers to an importation, exportation or conveyance of goods that is unlawful because it is a contravention of the Customs Act: Lyons v. Smart (1908) 6 CLR 143 . By definition in s. 4, the word "carriage" includes vehicles and conveyances of all kinds. In s. 229 this means land vehicles and conveyances: the forfeiture of ships, boats and aircraft is dealt with in s. 228. In letters to the appellant, the respondent asserted its ignorance of any unlawful use of its vehicle; and it said that if its vehicle were forfeited it had no hope that any remedy it might have against Visscher would be fruitful. These statements are not disputed by the appellant. (at p439)

5. The learned District Court judge who heard the action gave judgment for the plaintiff, the present respondent. He considered that there could be no forfeiture under s. 229 without some guilty knowledge on the part of the person whose property was forfeited. He arrived at this result by introducing the word "knowingly" into s. 229 (j) by implication. But I do not think that his Honour's careful and learned survey of case law properly supported the conclusion that he reached. The question of guilty knowledge may be relevant in a prosecution for a customs offence, although in some cases liability there may be absolute, as for example Poole v. Wah Min Chan (1947) 75 CLR 218 ; Fraser v. Beckett &Sterling Ltd. (1963) NZLR 480 ; Helleman v. Collector of Customs (1966) NZLR 705 . But forfeiture of a thing by virtue of s. 229 (j) results simply from its actual use by some person in an unlawful activity as there described. Whether the owner of it knew of the use to which it was put is immaterial. That has been decided in cases arising under s. 229 or similar provisions: Lord Advocate v. Crookshanks (1888) 15 Rettie 995; 25 ScLR 705 ; Sandness v. The King (1933) Ex CR (Canada) 78 ; Little's Victory Cab Co. Pty. Ltd. v. Carroll (1948) VLR 249 . If the owner is innocent of complicity in the unlawful use, his remedy lies in an action for damages against the user whose wrongful conduct deprived him of his property. An early illustration is Blewitt v. Hill (1810) 13 East 13 (104 ER 270) , a case of a hired vessel used for smuggling. This stringency of provisions for forfeiture has been mitigated in Canada by statute. There the owner of a vehicle or vessel is protected against its forfeiture if he can establish that he was innocent of any complicity in its unlawful use and that he had taken all reasonable care that it was not likely to be used in that way: Sandness v. The King (1933) Ex CR (Canada) 78 ; McCormick v. The King (1940) Ex CR (Canada) 183 ; Deputy Minister of National Revenue v. Industrial Acceptance Corporation Ltd. (1958) 15 DLR (2d) 369 ; Industrial Acceptance Corporation Ltd. v. Lavoie (1965) 1 CCC (Canada) 85 . There is no similar modification of the strict liability to forfeiture created by s. 229 (j). The only question is therefore whether what occurred amounted to a use of the respondent's vehicle in one, or more, of the ways proscribed. (at p440)

6. It was not used in smuggling; for the word "smuggling" when used in the Act is defined, in s. 4, as meaning "any importation, introduction or exportation or attempted importation, introduction or exportation of goods with intent to defraud the revenue". The clandestine bringing in of the birds, prohibited imports, was not with intent to defraud the revenue but to evade the prohibition. Then, was the vehicle used in the unlawful importation or the unlawful conveyance of the birds? Their importation was unlawful: s. 233 (1). And, being prohibited imports, their conveyance after importation to any place by any person, without reasonable excuse, was unlawful: s. 233 (1) and (2). The respondent says that the only relevant use of the vehicle was when the suitcases were put in it by Visscher and Fitzgerald while it was stationary in the parking area. It contends that that was not a use of it in importation; and that it was not a use of it in unlawful conveyance, as it had not been moved with the goods aboard before the Customs officers arrived. The learned District Court judge made no finding on these aspects, because he had - mistakenly as I consider - exonerated the respondent by reason of its lack of guilty knowledge. The question must therefore now be decided, the relevant facts not being in dispute. (at p440)

7. Although the denotation of the word "smuggling" as used in the Act is limited to acts done with intent to defraud the revenue, the dictionary meaning of the word includes also the clandestine bringing into the country of any goods the importation of which is forbidden. This ordinary sense of the word is known to the law too. English textbooks, including Halsbury, commonly refer for the meaning of smuggling to Hawkins' Pleas of the Crown where it is said that:

"Smuggling consists in bringing on shore, or in carrying from the shore, goods, wares, or merchandize, for which the duty has not been paid, or of goods of which the importation or exportation is prohibited."

This makes English laws against smuggling relevant in considering the construction and operation of s. 229, which is in substance a reproduction of them. The most useful brief account that I know of the early laws is the article "Smuggling" in Bacon's Abridgment, 6th ed. (1807). The habits and happenings that in the eighteenth and early nineteenth centuries lie behind the laws against smuggling are a familiar and romantic chapter of social history. (at p441)

8. Blackstone noted that when duties were high smuggling was "a very lucrative employment". The trade attracted much popular sympathy and approval. In Scotland in the eighteenth century smuggling and violence to English excisemen was a form of patriotic endeavour. And in England - to quote G. M. Trevelyan in English Social History, p. 387 - "smuggling added to the interest of people's lives almost as much as poaching, and was regarded as equally innocent". Doctor Johnson, disregarding the popular sympathy, described a smuggler as "a wretch who, in defiance of justice and the laws, imports or exports goods either contraband or without payment of the customs". In Pike, History of Crime in England, vol. ii, p. 398, it is said that "the most conspicuous crime in the latter half of the eighteenth century, and at the beginning of the nineteenth, was beyond all comparison that of smuggling". I mention all this because the forfeitures for which s. 229 now provides are derived from the drastic measures that were at that time enacted in an attempt to put down smuggling by confiscating the instruments of the trade. (at p441)

9. The injustice of confiscating the property of an innocent person was urged in argument in this case. But I do not think that we can modify the meaning of the words of the Act because they can be traced to enactments in social conditions and to meet social problems which are not those of today. The Commonwealth Parliament has not seen fit to alter the old words. That they come down from days before motor cars, when horses and donkeys were used to carry smuggled goods on land, does not mean that forfeitures can have no place today. Contraband takes now new forms, such as birds, narcotic and noxious drugs and other kinds of illicit imports. Traffic in such things can still be, using Blackstone's words, a lucrative employment. Parliament has not relented in the measures it prescribes to prevent it. We are not to change the established meaning and effect of the words Parliament has used. We are only to read them and see whether they, read strictly of course, fit the facts and thus create a forfeiture. Mr. Voss in his forceful argument for the respondent invited close attention to the words in s. 299 (j). (at p442)

10. The phrase, "used in importation", or "used in conveyance", as an adjectival description of a carriage or animal can denote either that it was habitually, that is from time to time, so used, or that it was on some occasion so used. In the former case it characterizes a vehicle by reference to the use to which it is ordinarily put and for which it is kept. In the latter case it refers to the use to which it was put on a particular occasion. The latter is, I consider, the sense the phrase bears in s. 229. The policy of the Act and the history of the provision suggest that that is so. (at p442)

11. A near ancestor of s. 229 (j) is s. 202 of the Customs Laws Consolidation Act 1876, 39 &40 Vict., c. 36, of the United Kingdom. So far as relevant, it runs:

"All ships, boats, carriages, or other conveyances, together with all horses and other animals and things made use of in the importation, landing, removal, or conveyance of any uncustomed, prohibited, restricted, or other goods liable to forfeiture under the Customs Acts shall be forfeited."

But provisions for forfeitures of this sort can be traced to statutes much further back. In the Act for the Prevention of Smuggling, 6 Geo. IV, c. 108, which in 1825 followed the consolidation of the customs laws in that year, s. 32 read:

"If any goods liable to the payment of duties shall be unshipped from any vessel or boat (customs and other duties not being first paid or secured), or if any prohibited goods whatsoever shall be imported into any part of the United Kingdom; . . . in such case all such goods as aforesaid shall be forfeited, together with all horses and other animals and all carriages and other things made use of in the removal of such goods."

This became s. 28 of the consolidation in 1833 of the laws for the prevention of smuggling, 3 &4 Wm. IV, c. 53. (at p442)

12. The respondent's vehicle being liable to forfeiture if on the day in question it was used in unlawful importation or unlawful conveyance, I shall consider first unlawful importation. Mr. Voss relied heavily upon the judgments in Wilson v. Chambers &Co. Pty. Ltd. (1926) 38 CLR 131 for his proposition that the act of importation had ceased before the suitcases containing the birds were placed in the vehicle, and that therefore it could not be said to have been used in the unlawful importation of them. To my mind the question is not to be answered by regarding seriatim the separate words of the section. Rather the question is what is meant by the composite phrase used in the unlawful importation of any goods. However, following the course that the argument took, I go first to what in customs law the word "importation" connotes, but observing that the first question in Wilson v. Chambers &Co. Pty. Ltd. (1926) 38 CLR 131 , was whether there had been a failure to enter imported goods in accordance with s. 68 of the Act. That depended upon whether a quantity of paint which was consigned by ship to a consignee in Sydney, but which was carried to another Australian port and there sold by the consignee to the master of the ship for the use of the ship and never discharged, was "imported goods" within s. 68. The Court unanimously, in separate judgments, held that it was. I quote a passage from the judgment of Starke J. which seems to me to sum up the question as it arose in that case (1926) 38 CLR, at p 150 .

"It cannot, in my opinion, be maintained that the mere act of bringing goods into port constitutes an importation; though unexplained it may be evidence of the fact. If goods, however, are brought into their port of destination for the purpose of being there discharged, the act of importation is complete. On the other hand, the act of importation is not complete if a ship enter some port of call with goods on board which is not the destined port of discharge for those goods. Actual landing is not necessary, as was argued, to constitute an importation for fiscal purposes. Now, in the present case the goods were not brought to their port of destination but to Port Kembla, where the goods were to be landed with the assent of the consignees. That, in my opinion, was an importation of the goods within the meaning of the Customs Act."

On that basis "the time for payment had arrived", to use the language of Isaacs J. (1926) 38 CLR, at p 141 , which echoes a sentence of Parke B. in Attorney-General v. Ansted (1844) 12 M &W 520, at p 528 (152 ER, at p 1308) . Knox C.J. said (1926) 38 CLR, at p 136 :

"Goods are imported whenever they are brought into port for the purpose of being discharged there. So far as the ship is concerned the goods have at that time arrived at their destination, and their character as goods imported into Australia cannot, I think, be affected by an agreement subsequently made under which they are not in fact landed at the port at which the ship arrived. In the circumstances of this case I think it is clear that the paint in question was imported when the ship arrived in Port Kembla and that the obligation to make an entry arose at that time." (at p444)

13. Higgins J. quoted a definition of "import" from the Oxford English Dictionary: "to bring in or cause to be brought in (goods or merchandise) from a foreign country, in international commerce" (1926) 38 CLR, at p 146 . This is the sense in which the word was originally used in customs law. Thus in early statutes and cases it was said or assumed that goods became dutiable when they were brought from beyond the seas, unshipped and put on land in the Kingdom, or being contraband on board a ship in port in the Kingdom were there offered for sale: A Case of Custom (1582) 12 Co Rep 18 (77 ER 1299) ; Smyth v. Reynolds (1765) 2 Wils KB 257 (95 ER 797) : and the goods must have been intended to become merchandise within the Kingdom, as appears from the terms of the information in Reniger v. Fogossa (1550) 1 Plowd 1 (75 ER 1) . Thus in Chapman v. Lamb (1732) 2 Stra 943 (93 ER 957) the Attorney-General said that "it was too hard for him to maintain" that a man was liable to duty in respect of fourteen shirts, a nightgown and a cap that he had brought from France as his own wearing apparel. (at p444)

14. The old doctrine that the fiscal purposes goods were not imported until actually landed and delivered was long ago modified, so that importation is now taken to have occurred and duty to become payable when a ship comes to port or an aircraft lands with goods aboard for delivery to a consignee. That is the time when duty becomes exigible. But the judgments in Wilson v. Chambers &Co. Pty. Ltd. (1926) 38 CLR 131 , which assert this, do not I think govern the present case or directly bear upon it. Here the question is not when goods lawfully brought in are imported so as to be dutiable. It is what amounts to the use of a thing in an unlawful importation, a very different matter. If a carriage or an animal could only be said to have been used in unlawful importation if it were used to bring goods ashore or from the air to land, then s. 229 (j) could have no application; for carriages and animals do not sail or fly. Forfeiture of a carriage or animal because of its use in an unlawful importation of goods thus cannot be said to depend upon its use as the vehicle for actually bringing the goods into the country. It would be equally impossible to use a carriage or an animal in the unlawful exportation of goods if this were to postulate a use in the actual occurrence of exportation; for, strictly speaking, exportation by sea occurs when a vessel carrying the goods clears the port for the high seas: see Attorney-General v. Pougett (1816) 2 Price 381 (146 ER 130) . To give them a meaning, the words "a carriage used in the unlawful importation or exportation of goods" must therefore, I consider, refer to some use of it that is incidental and proximate to, or involved in the course of the illegal process. I here respectfully accept the reasoning of Jordan C.J. in Owens v. Collector of Customs (N.S.W.) (1940) 40 SR (NSW) 605 . A motor vehicle taken to the airport by a person who had procured prohibited goods to be secretly brought in, so that he might there obtain them on landing from an accomplice in the crime and then carry them away in that vehicle, is in my view properly said to have been a carriage used in their unlawful importation. An unlawful importation is, as I see it as a process, not at an end immediately illicit goods are put on land. It can begin before they are put aboard the craft by which they are landed, and can continue after it has made a landfall. That a thing may be used in the importation or landing of goods although it was not used in the actual landing of them is illustrated by the decision in Attorney-General v. Hunter (1949) 2 KB 111 . There Morris J., as his Lordship then was, said that in the case of "a planned adventure" the whole facts must be looked at. He held that a vessel from which goods had been transferred to a landing craft, at sea beyond territorial waters, and then carried ashore by the landing craft was "made use of in the importation and landing" of the goods, and therefore was justifiably forfeited by virtue of s. 202 of the Act of 1876 above-mentioned. (at p445)

15. I turn now to the next aspect, unlawful conveyance. At the outset I may say that a vehicle is not forfeited as having been used in unlawful conveyance unless its use was in the control of a person engaged in the illegality. A smuggler who travels with his smuggled goods in a public vehicle, train or bus, does not thereby cause it to be forfeited; and no conclusion can be founded on such suppositions. In this case Visscher was in charge of the car. It was in his control. He held the key of it until the Customs officers intervened. (at p445)

16. I do not think that unlawful importation and unlawful conveyance are mutually exclusive activities. The early laws against smuggling provided for the forfeiture, not only of craft used in smuggling, but also of carriages and animals used to remove the smuggled goods from the place where they were run ashore and to carry them to hiding places or buyers. A removal of smuggled goods from the shore was always a part of smuggling. Similarly the conveyance of illicit goods immediately upon landing from a wharf or airport may, I consider, be part of the process of their unlawful importation. The act of unlawful importation does not have to be accomplished and at an end before unlawful conveyance can begin. Unlawful importation and unlawful conveyance can be overlapping activities. As Barton J. expressed it in Lyons v. Smart (1908) 6 CLR, at p 156 , there can be a conveying "during the act of importation or exportation, or for the purpose of such importation or exportation". But it is said that the respondent's motor car was not used by Visscher or Fitzgerald in the conveyance of the illicit goods because it was not moved by them with the goods aboard. It was there in readiness to be used in conveyance and the goods had been loaded upon it for that purpose. But it is said a use in conveyance predicates the use of the vehicle as a conveyance and in actually conveying. This is a cogent argument although it depends upon a very narrow margin. However, I have come to the conclusion that a vehicle is used in the unlawful conveyance of goods if they be loaded upon it in immediate preparation for their conveyance in it. The phrase "used in unlawful conveyance" describes I consider all activities that are proximate and essential parts of the process by which a carriage or animal is used in conveying. The use postulated is a purposive use forming part of a planned course of conduct, "a planned adventure" in the words of Morris J. in the case abovementioned. I can illustrate this by four lines from verses by the poet Crabbe, quoted by Mr. Williams in his book Contraband Cargoes, Seven Centuries of Smuggling. Crabbe, whose father was a Customs officer in Suffolk in the eighteenth-century heyday of smuggling, described how men stood by the seashore:

"Beneath yon cliff they stand, To show the freighted pinnace where to land; To load the ready steed with guilty haste; To fly in terror o'er the pathless waste;"

I think that the ready steed was being made use of in the conveyance of smuggled goods while he was being loaded and before he was led off with his load towards the pathless waste. (at p446)

17. For the reasons that I have given I have come finally to the conclusion that the motor car in question in this case was used in the unlawful importation and in the unlawful conveyance of the birds: and that it was thereby forfeited. I would allow the appeal. (at p446)

OWEN J. I have had the advantage of reading the judgment of my brother Windeyer. He is of opinion that the motor car, the subject of the present proceedings, was when seized by the Customs officers being "used in the unlawful importation" of the prohibited imports and was also being "used in the unlawful conveyance" of those goods. I prefer to express no opinion on the first point but I am of opinion that, for the reasons my brother has given, the car was being "used in the unlawful conveyance" of the goods notwithstanding the fact that it had not yet begun its journey from the airport. The loading of goods on to a vehicle preparatory to driving it away is, in my opinion, part and parcel of the use of that vehicle in the conveyance of goods. (at p447)

2. I would allow the appeal. (at p447)

GIBBS J. I have had the advantage of reading the reasons for judgment prepared by my brother Menzies and am in agreement with them. (at p447)

2. No doubt it is no less necessary now than it was in earlier times that the Customs legislation should include rigorous provisions for penalty and forfeiture for the purpose of deterring and preventing smuggling and the unlawful importation and exportation of goods. The provisions of s. 229 (j) of the Customs Act 1901-1968 (Cth) are especially severe in that they effect the forfeiture of a carriage or animal that was in fact used in smuggling or in the unlawful importation, exportation or conveyance of any goods even though the owner of the carriage or animal was quite unaware that it was intended to be so used and took no part in the unlawful user, and indeed even if it had been so used by someone who had stolen it from the owner. Our duty is to give effect to the intention of the legislature as expressed in the statute, but since the statute imposes a forfeiture we must construe it strictly, in the sense that we must not extend its provisions to cases not clearly within their scope but must resolve any doubt or ambiguity in favour of the subject whose property is sought to be forfeited. The words of s. 229 (j) on their proper construction seem to me to refer to a carriage or animal used in the course of an activity referred to in the section and while that activity was going on. In the present case there is no doubt that goods (namely, some birds) were unlawfully imported and were then unlawfully conveyed by hand from the passengers' clearance hall in the overseas terminal at the airport to the motor vehicle in which they were placed. The motor vehicle was intended to be used in connexion with, although after, the unlawful importation of the goods, but it was not used in their importation because the importation had been completed before the goods were placed in the vehicle. The goods were still subject to the control of the Customs but that did not mean that they were still in the course of importation. The motor vehicle was also intended to be used in the unlawful conveyance of the goods, but it was not so used because the intervention of the Customs officers prevented the goods from being unlawfully conveyed in the vehicle. To load goods on to a stationary vehicle preparatory to conveying them therein is not, in my opinion, to use the vehicle in their conveyance; the conveyance of the goods, and the use of the vehicle in their conveyance, commence only when the vehicle is moved with the goods aboard it. Here the vehicle was not moved until the Customs officers had taken control and the conveyance was then lawful. (at p448)

3. I would dismiss the appeal. (at p448)

Orders

Appeal allowed with costs. Order of the District Court of the Metropolitan District at Sydney set aside and in lieu thereof order that judgment be entered for the defendant with costs.