Ketchell v Wynch - [2001] QDC 323

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Transcript of Proceedings

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the Director, State Reporting Bureau. [2001] QDC 323

REVISED COPIES ISSUED State Reporting Bureau

Date: 6 / 12 / 01

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE C F WALL QC
Appeal No D113 of 2001

GLENN ROBERT KETCHELL First Appellant
and

ESANDA FINANCE CORPORATION LTD Second Appellant
and
GARY EDWARD DONALD WYNCH First Respondent
and

OFFICIAL TRUSTEE IN BANKRUPTCY Second Respondent
TOWNSVILLE
..DATE 05/12/2001
JUDGMENT

05122001 T1-5/SPB M/T TSVDC1/2001 (Wall DCJ) 1

HIS HONOUR: The facts relating to this appeal are referred to in the judgment I delivered on 29 May 2001 in relation to jurisdiction, and in the judgment of the Court of Appeal in considering an appeal from that decision delivered on 21 August 2001, see Ketchell v Wynch & Official Trustee (2001) QCA 291, and I need not repeat them here.

Leave was given at the outset for the appellants to file an amended notice of appeal. I have now heard the appeal on the merits. Two grounds only were argued, whether knowledge or mens rea on the part of the innocent owners need be proved and whether the proceeding was an excise prosecution which should have been but was not instituted by the Chief Executive Officer (CEO) of Customs. The grounds relying on the absence of notice of the proceedings in the Magistrates Court to Esanda and whether a distinction should be made between the prime mover and the trailer were abandoned.

At the outset of the hearing, Esanda was added as an appellant to the proceeding. Mr Lewis of counsel appeared for both appellants. Mr Fellows of counsel appeared for the first respondent. There was no appearance for the second respondent, nor did there need to be.
I will deal with each ground of appeal separately.
2 JUDGMENT

05122001 T1-5/SPB M/T TSVDC1/2001 (Wall DCJ) 1
Knowledge
Section 116(1) of the Excise Act is in the following terms:
"The following goods shall be forfeited to the Crown:

(a)

all excisable goods manufactured or partly manufactured by a person who is not a licensed manufacturer;

(b)

all tobacco seed, tobacco plant or tobacco leaf found on any premises where the manufacture of excisable goods is unlawfully carried on;
(ba) all tobacco leaf that has been moved without
permission under section 44;

(bb) all tobacco seed, tobacco plant (whether or not in
the ground) or tobacco leaf found in the possession,
custody or control of a person (other than a
licensed producer, licensed dealer or licensed
manufacturer) without permission;

(bc) all tobacco seed, tobacco plant (whether or not in
the ground) or tobacco leaf kept or stored at a
place that is not specified in a producer licence,
dealer licence or manufacturer licence;

(c) all goods used, or capable of being used, in, or in connexion with, the manufacture of excisable goods, found on any premises where the manufacture of

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ketchell v Wynch

Details

AGLC: Ketchell v Wynch [2001] QDC 323
Case: [2001] QDC 323
Decision Date: 5/12/2001

CaseChat Overview and Summary

The appeal in the case of Ketchell v Wynch was heard by Judge C F Wall QC in the District Court of Queensland. The appellants, Glenn Robert Ketchell and Esanda Finance Corporation Ltd, appealed against the decision of the Magistrates Court to forfeit their vehicles to the Crown under section 116(1)(e) of the Excise Act. The first respondent, Gary Edward Donald Wynch, and the second respondent, the Official Trustee in Bankruptcy, defended the forfeiture. The appellants argued two grounds of appeal: whether knowledge or mens rea on the part of the innocent owners needed to be proved, and whether the proceeding was an excise prosecution that should have been instituted by the Chief Executive Officer (CEO) of Customs.

The court addressed the first ground of appeal concerning knowledge or mens rea. Judge Wall found that knowledge or culpability on the part of the innocent owners was not required for the application of section 116(1)(e) of the Excise Act. The court relied on established case law, including Forbes v Traders' Finance Corporation Limited, which held that forfeiture provisions should be interpreted strictly against the innocent owner due to their harsh consequences. The court concluded that the absence of knowledge of wrongdoing on the part of the appellants could not assist them, and this ground of appeal failed.

The court then examined the second ground of appeal regarding whether the proceeding was an excise prosecution that should have been instituted by the CEO of Customs. The court determined that the proceeding before the Magistrate was not an excise prosecution but a separate and distinct proceeding provided for by section 9 of the Crimes Act. The court found that the proceeding was properly commenced under section 9 of the Crimes Act, and even if it had been incorrectly categorised as an excise prosecution, the defect was not fatal to the proceedings. The court dismissed both grounds of appeal and confirmed the decision of the Magistrate.

In conclusion, the appeal was dismissed, and each party was ordered to bear their own costs of the appeal. The court urged the Official Trustee not to take any steps to sell or dispose of the vehicles until the appellants had exhausted any further appeal rights they may have.

Orders