Murphy v Farmer

[1988] HCATrans 70

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S115 of 1987

B e t w e e n -

PAUL ANTHONY MURPHY

Appellant

and

JAMES ALFRED FARMER

Respondent

BRENNAN J
DEANE J
DAWSON J
TOOHEY J

GAUDRON J

Murphy(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 APRIL 1988, AT 10.19AM

Copyright in the High Court of Australia

C2T2/l/SH 1 21/4/88

!1R R.J. BURBIDGE, QC: In this matter,may it please the Court,

I appear with my learned friend, !1R L. KATZ, for the

appellant. (instructed by the Australian Government

SoJ.icitor)

!1R T.E.F. HUGHES, QC:  May it please the Court, I appear with

my learned friend, !1R V. GRAY, for the respondent.

(instructed by Malcolm Johns & Company)

!1R BURBIDGE:  Thank you., Your Honours. May I hand up an

outline of the appellant's submissions and may I

indicate, Your Honours, that the point is a short

point indeed. The sole question which Your Honours

are asked to decide is the question of whether the

word "faults" in section 229(l)(i) of the

CUSTOMS ACT, 1901 means "untrue in fact" or

"wilfully false".

BRENNAN J:  You might give us a moment just to scan your

notes of argument, Mr Burbidge.

!1R BURBIDGE: If Your Honours please.

BRENNAN J: Yes, Mr Burbidge.

!1R BURBIDGE:  Thank you, Your Honour. Your Honours, the facts

of the matter need not, of course, detain Your Honours.

I should indicate that the relevant date is 11 May 1984,

that being the date on which the respondent imported

from New Zealand a motor vehicle which was seized by

customs that day. The sole reference I propose to

make to the transcript record of proceedings before

Your Honours is to tell Your Honours where the

factual matter is recorded and then I do not propose

to go to it further. It is at page 109 which is part

of His Honour the trial judge's judgment. It is

sufficient to take Your Honours to the first lines

of that page where His Honour records the factual

situation in these terms:

(Continued on page 3)

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Murphy(2)
MR BURBIDGE (continuing):

Those answers were affirmative answers given

to the following two questions -

and they are of no significance -

and a negative answer to the question -

this is line 10 -

"Did you or your husband or wife, as appropriate,

import a vehicle into Australia within the

past three years."

That is the question which was conceded to be

incorrectly answered, as appears at page 112 -

also part of His Honour's judgment - and the first

lines of that page:

It was conceded by the plaintiff that

the negative answer to the third question .....
was erroneous but he claimed that it was the

consequence of a mistake or misunderstanding

on his part.

Now, Your Honours, His Honour the trial judge was

was of a view that the word "false" in section 229(1)(i)

meant wilfully false and so held. That view was

also taken unanimously by the New South Wales

Court of Appeal and now falls, ultimately, for

Your Honours to determine. Your Honours the

relevant legislation is to be found in the reprint

of the CUSTOMS ACT as at 31 March 1984. There

are no amendments affecting any relevant section

and, accordingly, that reprint may be taken to

represent the law, so far as relevant, at the relevant

date. I would ask Your Honours to look, if

Your Honours would, at section 229 which reads,	under the heading "Forfeited goods 11 - sect ion 22 9 ( 1) : The following goods shall be forfeited to
the Crown -

and there follow a list of categories of goods of which I would ask Your Honours to go to the paragraph (i) reading:

(Continued on page 4)

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MR BURBIDGE (continuing):

All goods in respect of which any invoice declaration answer statement or representation

which is false or wilfully misleading in any

particular has been delivered made or produced.

And whilst at that section, would Your Honours look

at the paragraph which follows, (j):

Any carriage or animal used in smuggling or in

the unlawful importation, exportation, or

conveyance of any goods.

Perhaps,whilst we are looking at the legislation,

Your Honours might be good enough to look at section 234, under the heading "Customs offences,"

the whole of these sections, of course, falling within

Part XIII, "Penal Provisions.!' Section 234:

A person shall not -

and then, if one goes to paragraph (d):

Make or give any entry which is false in any

particular;

paragraph (e):

Make in any declaration or document produced, given, delivered or furnished to any officer

any statement which is untrue in any particular

or produce, give, deliver or furnish to any

officer any declaration or document containing

any statement.

and (f):

Mislead any officer in any particular likely

to affect the discharge of his duty.

So that the scheme of the Act, Your Honours, we would

submit, plainly envisages that certain conduct

shall con~titute a customs offence. It is not restricted

to those set out in section 234, though those are the

only provisions relevant for our argument, and it is,

in our submission, apparent that forfeiture itself

attaches to a series of goods as described in

section 229 by the operation of that section itself.

(Continued on page 5)

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MR BURBIDGE (continuing):	Your Honours, if	I may then go

to the submissions themselves. The submissions,

if I may categorize them before reading them to

Your Honours, break up in the following way:

t1'le first and the second paragraphs of our

outline deal with what might be termed the

"contextual argument", that is the words considered

free of any context within the broader ambit

of the section or the Act; paragraph 3 deals

with the words within the context of the section

itself, that is 229; and paragraphs 5 and 6

deal with the contextual meaning of the phrase

within the Act as a whole, leaving only paragraph 4

which deals with the three lower court judgments
which deal directly with the topic.

If I may then return to the first of our

submissions. In_oursubmission, the words themselves,

"false or wilfully misleading" mean wrong in

fact in so far as the qualifier, the word "wilfully",

qualifies the word "misleading". The phrase as the legislature has chosen it is, in our submission, to be contrasted with the possible

phraseology which might have been used, namely

"wilfully false or wilfully misleading" or

"wilfully false or misleading". One can see

that an argument could well be mounted for

the proposition that the phrase "wilfully false

or misleading" would mean "wilfully false or

wilfully misleading".

In our submission it cannot be seen that the argument may be made to run, as it were, the other way by saying that the qualification

of the second idea, that of misleading, is

to be extended to the first idea which is free

of the qualification. So we would submit that
the phrase itself suggests that the legislature
intended that the word misleading should be

alone governed by the word "wilfully".

We make reference, Your Honours, to the

statement of His Honour Mr Justice Stephen,

which I will read, if I may, though familiar:

To read words into any statute is a strong

thing and, in the absence of clear necessity,

a wrong thing.

(Continued on page 6)

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MR BURBIDGE	(continuing):	Now, Your Honours, I do not

ask Your Honours to go to these authorities for the moment, the sole extracts being those which appear in our outline·· for the moment at least

at'ro if we may draw attention to the words of

His Honour Mr Justice Menzies, with which

His Honour Mr Justice Gibbs - as His Honour then

was - concurred, in FORBES V TRADERS FINANCE

CORPORATION, His Honour said:

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.

Your Honours, if I advance to paragraph 2, and

it is something in the nature of a pre-emptive
strike, as it were, in so far as the proposition
to which it is addressed is one which - or the
adverse proposition is one which found favour both
with His Honour Mr Justice Yeldham and with the

members of the Court of Appeal. In our submission,

it is not in fact surprising that there should

be a distinction drawn as to the consequences of

a statement made false, albeit unknowingly, and

those in which it is misleading, unknowingly, the

former giving rise to forfeiture, the latter not.

Your Honours, it was suggested below, and

accepted, that it would be an odd idea if statements

which were false, though not knowingly so, should

result in forfeiture whilst those which were merely

misleading needed to be wilfully so before

forfeiture followed. In our submission, that is

not so in so far as, if one accepts that the broad

overall requirement is that the importer should
state those facts upon which duty is properly

to be assessed, one can see that the requirement

that a statement not be false would encourage

accuracy in the making of the entry, the giving

of the statements and the like, the various activities

which go with the assessment of duty.

(Continued on page 7)

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Murphy(2)
DEANE J:	Mr Burbidge, is there anything in the Act that

expressly restricts section 229(l)(i) to statements made to an officer, or declarations delivered to an

officer, or does one just read that somehow into it?

I notice section 234(l)(e) confines it by reference to - - -

MR BURBIDGE:  I think, Your Honour, the answer may be that

plainly an entry, of course - an entry has a

particular meaning - an entry may, of course, be made

only to a customs officer. As to the phrase

"delivered, made or produced", certainly I cannot

immediately see why that would be restricted to officers,

except as a matter of implication, Your Honour, but

perhaps I might consider that.

DEANE J:	There is nothing in the Act that cuts it down?
MR BURBIDGE:	Only - certainly as relates to entry,

Your Honour.	I will take Your Honour to that
subsequently.

DEANE J:  I was looking at "statement or representation"

merely made or pro uce " d d" . You wou d expect them 1

to confine it by saying to whom or - - -

MR BURBIDGE:  Except this, of course, Your Honour; one

would read that provision as the delivering, making or producing of the various matters for the purpose

of the Act. One would assume then that the idea

would be restricted to such activities as were relevant

to the purposes of the Act and hence would envisage

the delivery, etcetera, to an officer of customs.

But I am not aware of any specific provision,

Your Honour.

Your Honours, if I may return then~ What we

would suggest is that there is nothing incongruous

about the idea of false meaning no more than incorrect,

since to require, under penalty of forfeiture, accuracy

in the making of such declarations, entries, and the

like plainly would encourage the purposes of the Act.

Continued on page 8)

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Murphy(2)

MR BURBIDGE (continuing):  On the other hand one can see that

a statement et cetera could be made which was misleading

and one could readily envisage that it could be

so, that is misleading, in consequence of circumstances

unknown to the maker of the statement. It would then

plainly be Draconian ta say, "Well, true it is that

you didn't appreciate the circumstances, but in fact

what you have said is, by reason of matters not known

to you, quite misleading, and accordingly forfeiture

follows." That plainly would be, in our respectful

submission, Draconian and it would not then be surprising

that that which is false, in the sense of incorrect, is

subject to penalty, thus encouraging accuracy. Eut

that where merely misleading,the additional element

of wilfulness must need to be established in order

to attract the operation of a section.

Now, Your Honours, that that general policy is

that of the Act is, in our submission, to be found

amongst other places in the statements of His Honour

the Chief Justice Sir Owen Dixon in BURTON V HONAN,

and if I may ask Your Honours to go to that report.

It is reported in (1952) 86 CLR 169. If I may

return to the matter raised by Your Honour dealt with in section 36 of the Act. That section

reads:

Subject to sub-section (2) and section 37, an

entry in respect of goods that are required or

eligible to be entered shall be made by the

owner of the goods giving to an appropriate

Collector in a manner prescribed by the regulations an entry in respect of the goods containing the particulars required by the regulations -

I think it is from that, Your Honour, and from the

regulations that the other obligations stem.

DEANE J: Well, would you read "irrelevantly"·, or something

like that into 229(1)(i)? I mean, what if you

were coming in and you produced a box which had on it "shoes with white laces" - just the label from the shop - - -

MR BURBIDGE:	Yes.
DEANE J:	- - -and it emerged that one of the shoes did not have a lace in it?

(Continued on page 9)

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Murphy(2)
MR BURBIDGE: Well, I think, Your Honour, we would read the

word "material" in before the word "particular".

That is to say - - -

DEANE J: Wnere would you read "material" in?

MR BURBIDGE: Well, into the phrase "in any particular".

DEANE J: 

I see.

MR BURBIDGE: 

So, Your Honour, to use a verb, the well-known

example, plainly if the colour were misstated but
that had no significance, it would not be a

material particular, but on the other hand if one,
for example, were using metallic paint as against

non-metallic paint and the customs differentiated

between the two - - -

DEANE J: 

Or black and white instead of colour.

MR BURBIDGE: Or black and white instead of colour - that really

does not sound like a material particular we would

think, Your Honour.

DEANE J:  I see.

MR BURBIDGE:  Oh, sorry, of course. I am sorry, Your Honour,

I am little slow on that. Certainly, black and

white in the,context to which Your Honour refers
would be regarded as significant.

Well, Your Honours, could I then take you to

BURTON V HONAN. I should tell Your Honours there

were minor differences in the legislation but, in

our submission, nothing which is significant.

Perhaps if Your Honours would look at page 170 of

the report. The judgment of His Honour ultimately
was one with which - the section in question, 229(i),

is to be found towards the foot of page 170:

(Continued on page 10)

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Murphy(2)

MR B URB·IDGE (continuing) :

All goods in respect of which any entry invoice declaration answer statement or representation

which is false or wilfully misleading in any

particular has been delivered made or produced.

So there is no difference in the relevant paragraph. Now, the passage to which we would take Your Honours

is in the only judgment. It is at page 178 of the

report. His Honour, towards the foot of page 178

deals with matters which were pointed out in

argument and apparently accepted by the Court as

accurate, some matters on each side. His Honour

says:

The preliminary question with which we are

concerned is whether those two features of the

operation of the provisions drive it beyond

the application of the incidental power.	On
that subject, which is one degree, we have
had the advantage of a discussion on both
sides which has drawn our attention to the
material considerations.	On one side it is

pointed out that injustice may occur to

individuals who are innocent, and that they

may be involved in the loss of property for

which they can only have a recompense by

recourse to the person who has sold it, who

may, of course, not be able to restore the

purchase money. On the other side it is

pointed out that the in the history of English

and Australian Customs legislation forfeiture

provisions are common, drastic and far-reaching,
and that they have been considered a necessary

measure to vindicate the right of the Crown

and to ensure the strict and complete

observance of the Customs laws, which are

notoriously difficult of complete enforcement

in the absence of strong provisions supporting

their administration.

Your Honours, accordingly, we would submit there

is no incongruity in the idea that the legislature
has seen to impose a penalty of forfeiture in cases
where statements made are incorrect, but has
ameliorated the harshness of that situation where

the statements made are merely misleading a

circumstance which _may occur without fault on the part

of the person making entry and, for that reason, has

added the word, "wilfully," intending thereby only

that misleading conduct should require the additional

aspect of wilfulness.

Now, Your Honours, then I pass, if I may, to

consideration of the phrase	within the section
itself.	We do so in terms of paragraph 3 of our
outline.	Now, Your Honours, FORBES V TRADERS' FINANCE

CORPORATION LTD, (1972) 126 CLR 429, dealt with the

C2Tl0/l/VH	10	21/4/88
Murphy(2)

situation which arises, or arose, under section 229(j).

If I may remind Your Honours that 229(j) dealt with

the forfeiture of:

Any carriage or animal used in smuggling
or in the unlawful importation, exportation,

or conveyance of any goods.

(Continued on page 12)

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Murphy(2)

MR BURBIDGE (continuing):  Now, Your Honours, the only passage

to which we would take you - I am sorry, the purpose
in our taking you to FORBES' case is to indicate

that all members of the Court were of the view

that it was unnecessary to show any knowledge before

the operation of 229(j) came into effect. I do

not need to take Your Honours to those judgments

in which concurrence is expressed. Could I invite

Your Honours' attention to the judgment of

Mr Justice Menzies at 432 - His Honour was in dissent

on the question of conveyance but on the question

of knowledge His Honour said, at the foot of page 432:

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

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.

Now, Your Honours, the judgment, also, of

His Honour Mr Justice Windeyer is of some assistance and the relevant ~assage is to be found at page 439

of the report.	His Honour says - at about point 6
of the page:

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 .....

But forfeiture of a thing by virtue of s. 229(j)

results simply from its actual use by some

which it was put is immaterial.

person in an unlawful activity as there described.

Now, His Honour said further, at page 441, about

point 8 of the page:

The injustice of confiscating the property

of an innocent person was urged in argument

in this case. But I do not think that we

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Murphy(2)

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.

(Continued on page 14)

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Murphy(2)

MR BURBIDGE (continuing):  His Honour Mr Justice Gibbs

was of like view though he, too, was in dissent

on the other matter and His Honour says, at

page 447, point 4 of the page:

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 1968 (Cth)

are especially severe in that they effect

the forfeiture ..... 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.

And there follows another indication of the obligation of the courts.

BRENNAN J:	Mr Burbidge, there are a number of authorities
referred to by Mr Justice Menzies at page 433

and Mr Justice Windeyer at page 439 as indicative

of the long history of construing customs forfeiture

provisions. Do any of them relate to provisions

of the kind which is to be found in paragraph (i)?

MR BURBIDGE:	The answer is no, Your Honour. There are provisions which relate to (j), which was the
forfeiture of animals, and the like, used in the conveyance of goods, but no case relates to (i).

Your Honour, then if I may take Your Honours

briefly to such authority as in fact exists

on this question. There are two decisions,

one is the unreported judgment of His Honour

Mr Justice Yeldam, and if I may hand copies

of that to Your Honours, indicating that the

second is that of His Honour Mr Justice Lockhart

of the Federal Court. I do not take Your Honour

to this in detail and, indeed, it is appropriate

to point out that His Honour, in the present case before Your Honours, acknowledging his

view in this earlier case, characterized it

as a tentative view from which he retreated

in the present case. But, for what it is worth,

Your Honours, it is to be found at page 4 of

His Honour's judgment, in the centre of the

page. Perhaps if I go a little earlier - at

the top of the page:

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Although some discussion took place before me as to whether knowledge of the

falsity by the owner of the goods is required,

having regard to the conjunction with the

expression "wilfully misleading", I agree

with Mr Robberds, counsel for the plaintiff,

that in view of the manner in which the

present case was conducted this question

does not need to be determined.

If I drop down a little lower:

However, I should indicate my present view

that, notwithstanding that in many cases

it may work an injustice upon the owner

of goods which are forfeited, it is the

making of an entry etc. which is in fact

false which causes the goods to be forfeited

to the Crown and that knowledge or intention

is irrelevant.

There is an earlier reference to the same matter

which I mention for the sake of completeness,

it is at page 3, underneath the setting out

of the paragraph. His Honour, having set out

section 229(i), as it then was - it is now,

of course, section 229(l)(i), His Honour said:

(Continued on page 16)

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MR BURBIDGE (continuing):  His Honour said:

"False" in this context means

contrary to fact -

and His Honour made reference to two cases which

are cases dealing with offences and to which we

will come. Your Honours, the only other case in

which the matter was determined was that of

TOY CENTRE AGENCIES PTY LTD V SPENCER,

(1983) 67 FLR 458, and I do not propose to take

Your Honours to it other than perhaps to tell
Your Honours where it is to be found in

His Honour's judgment. It is at page 460 of the

report. In the centre of the page.	His Honour
Mr Justice Lockhart says this:

I turn first to the submission of counsel for the applicant that the word "false" in

s. 229(l)(i) means wilfully or intentionally false, not merely untrue as a matter of fact.

The word "false" may be used in either sense.

Ins. 299(l)(i) the word appears in the phrase
"false or wilfully misleading" which suggests
to me that the word is to be understood in
the sense of untrue in fact. If the
draftsman intended that it bear the meaning

of "wilfully false" I would have expected

to see the word "wilfully" or some like word

used to govern "false".

That decision was referred to with apparent

approval by His Honour Mr Justice Wilcox in FROST

V COLLECTOR OF CUSTOMS OF QUEENSLAND,

(1985) 63 ALR 297, at page 307.	I do not take
Your Honours to that.

If I may then go to the final submission,

Your Honour, it is the submission that within the

context of the Act as a whole, the phrase is still

seen to mean "false" equals "untrue in fact".

Before doing so, I should point out that

His Honour Mr Justice Menzies in the FORBES case

said, at page 433, that the cases relating to the

necessity for mens rea, as an element of statutory

offences have no application here.

If His Honour meant that there is no assistance

to be gained by looked at the cases which followed

from section 234, then little assistance, if any,

will be gained by this Court from those cases but

if, contrary to that - if His Honour was not intending

to preclude reference to the offence cases, then

we would submit that reference to those offence

cases leads to the same conclusion as set out in

our final paragraph where we record this submission

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Murphy(2)

that if contrary to the preceding submission,

cases relating to the necessity for mens rea do

have application in the construction of

paragraph 229(1)(i), then decisions of the court

orr-the provision in the CUSTOMS ACT creating the

offence closest in its terms to paragraph 229(1)(i),
namely paragraph 234(l)(d), support the appellant's

submission as to the meaning to be given to the

word "false" in paragraph 229(1)(i).

Could I just, Your Honours, return briefly

to the legislation to point out the similarities

and the differences which exist between the two

sections.

(Continued on page 18)

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MR BURBIDGE (continuing):	Your Honours will recall the

terms of paragraphs (i) and (j) of section 229(1).

If I could ask Your Honours then to look at

section 234, Your Honours would see that the cus~oms offences relate, in paragraph (a) to

evasion of duty, (b) to obtaining drawbacks, et cetera.

which are not payable, and then paragraph (d) deals

only with entry, as opposed to paragraph (i) of

section 229 ( 1) which deals with "entry

invoice declaration answer statement or

representation." When it comes to offences the ideas

are broken up and they are broken up, it would seem,

in this way: ''Make or give any entry which is false

in any particular" gets its own customs offence,

namely paragraph ( d), then "declaration or document

produced, given, delivered, or furnished" becomes a

separate offence under paragraph (e), but it is

appropriate, of course, to recognize that the phrase

used in this case, unlike (d) which uses the phrase

"false in any particular", when one goes to 234(l)(e)

section 234(l)(e) one finds that the phraseology

chosen is:

Make in any declaration ..... any

statement which is untrue in any

particular.

Then before leaving, however, I would draw attention

to the misleading which appears in paragraph (f) of

section 234 (1). Could I, Your Honours, invite

attention also to the penalty section which follows,

that is the subsection which follows, subsection 234(2)(c).

Your Honours would see that the legislature, in terms

of the provision of a penalty, has provided a penalty

by subsection (2)(a) in the case of an offence against

paragraph (a), by subsection (2)(b) the penalty for

paragraph (b), and then has grouped together (d),

(e) and (f) for the purpose of providing a penalty

by subsection (2)(c). So that one has the usage of

the word "false" in paragraph 234(l)(d) and the use

of the phrase "untrue in any particular" in

paragraph 234(l)(e).

Now, the cases which are relevant to the matter

are, we would submit, three, the first of which is

STERNBERG V THE QUEEN, (1953) 88 CLR 646.

(Continued on page 19)

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Murphy(2)

MR BURBIDGE (continuing):  And that, Your Honours, was

an offence case based on the nrovisions of

.section 234(d), as it then was, the wording of the section

is different in a minor degree. Your Honours will

recall that by 1984 it read, "make or give any

entry". That does not seem to have any significance.

In 1953 it simply read, "make any entry which is

false in the particular" and the phrase in question

is that with which we are concerned.

Now the judgment was that of the Chief Justice

His Honour Sir Owen Dixon. The relevant passage is

to be found at page 653 of the report. His Honour

observed, at about the second paragraph of that page:

It is true, as Dr Louat has observed, that

now difficulties exist in ascertaining the

value of goods imported from abroad with
precision and correctness and, indeed, it is
true that the application of some of the
provisions of the CUSTOMS ACT in obtaining

the domestic value in the country of origin

may not at any time have been easy. But that,

to my mind, does not militate against the

policy of insisting that those who import shall

be in a position to state the facts upon which

duty depends.

Section 234(d) is really the only provision

of the Act which is in question. It appears to me to be a clear provision making it an offence

to enter goods by an entry which in any

particular is contrary to fact.

Now, with that judgment Their Honours Mr Justices Webb

and Kitto were in agreement.

The next matter, Your Honours. is the case of

DAVIDSON VWATSON, (1954) 28 ALJ 63,

That too was an offence case, again based on

section 234(d) of the CUSTOMS ACT. Davidson, having

been convicted upon an information laid under

that paragraph, appealed pursuant to the provisions

of the JUDICIARY ACT and the judgment of the court
was - the relevant section of the judgment of the

court is to be found at page 64 of the report,

colunm two, point 5:

We think that the finding of the magistrate

that the entry was contrary to fact in a

particular was fully justified. "False" in

s.234(d) means contrary to fact.

A little lower down, about point 8, Their Honours say this:

19

C2Tl5/l/JM	MR BURBIDGE, QC 21/4/88
Murphy( 2)

It was not contended that under s.234(d) the knowledge or belief of the appellant is

material. For clearly, if the entry is

- objectively false in a particular the

offence is connnitted and guilty knowledge or

belief forms no ingredient in the offence.

(Continued on page 21)

C2Tl5/2/JM	20
Murphy(2)

MR BURBIDGE (continuing): Finally, Your Honours, although

there is plainly something of a mismatching of

words as between section 229 and section 234, this

Court has stated that one section picks up the other

and that is to be found in the report of L-VOGEL & SON

PTY LTD V ANDERSON, (1968) 120 CLR 157, initially a

judgment of His Honour Mr Justice Kitto and subsequently

dealt with by a Full Court consisting of Their Honours

Mr Justices Taylor, Menzies and Owen. I do not take

Your Honours to the first part of the report but if

Your Honours would go to page 169 in the joint

judgment of the Full Court, at point 5 of the page,

Their Honours say this:

Likewise, what pars. (c) and (d) of s. 234

penalize is the presentation of false invoices

and the making of false entries in respect of

goods. The offence under par. (e) may

presumably be committed in circumstances

unrelated to the importation of goods but

that is not the case here. Then, it may be

observed that bys. 229(i) "All goods in respect

of which any entry invoice declaration answer

statement or representation which is false or

wilfully misleading in any particular has been

delivered made or produced: are "forfeited to

His Majesty". This section, it seems to us,

picks up the offences created by pars. (c),

(d), (e) and (f) of s. 234 and effects a

forfeiture of the goods in respect of which

any false entry is made, or any false invoice

is presented, or, in respect of which any

declaration or document is produced which is

false in any particular.

So that Your Honours, for those reasons,we do submit that the word "false" is to be construed in

paragraph 229(l)(i) as meaning "contrary to fact".

Those are our submissions.

BRENNAN J:  Mr Burbidge, before you sit down, could I ask you

who may make an entry?

MR BURBIDGE:  The owner is required to make an entry, Your Honour.

It may, of course, be made by his agent, pursuant to

the - those are duly authorized agents.

BRENNAN J:	Customs agents.
MR BURBIDGE:	Customs agents pursuant to the provisions or

those sections within the Act which deal with customs

agents but only an owner or his customs agent.

BRENNAN J: What about sight entries and reports by masters

and so forth? Do they fall within this 229(i)(i)?

C2 Tl6 /1/SH	21	21/4/88
Murphy(2)
:MR BURBIDGE:	I cannot answer that, Your Honour.	I would have

to consider that, if I may.

BRENNAN J: Yes.

:MR BURBIDGE:  Perhaps I could consider that and inform

Your Honour at a later stage.

BRENNAN J:  Thank you, Mr Burbidge. Mr Hughes.

:MR HUGHES:  May I hand up six copies of our outline, Your Honours.

Your Honours, the first paragraph of the appellant's

outline proceeds on the assumption that the word
"false" has but one primary meaning and that it is,

therefore, necessary to read something into

section 229(l)(i) in order to displace the primary

meaning.

BRENNAN J: Perhaps you could give us a moment to scan the

notes.

:MR HUGHES:  I am sorry, yes.

BRENNAN J: Yes, Mr Hughes.

:MR HUGHES:  Your Honour, the point in this case is so short

that the SUil'Dllary really becomes the argument but -

BRENNAN J: Well, do not let us delay you.

:MR HUGHES:  I cannot be quite as good as my word. What we want

to say first about my learned friend's submissions is
that they do proceed, in the first paragraph, on the

assumption that the word "false" has only one primary

meaning and that it is somehow necessary to read the

word "wilfully" in by a process of implication to

reach the position which was reached by the primary

judge and the Court of Appeal.

"False" is a chameleon word, Your Honours. Like

many other words in the English language, it has two

primary meanings.

(Continued on page 22)

C2Tl6/2/SH	22	21/4/88
Murphy(2)

MR HUGHES (continuing): That was accepted below correctly

and the contrary was not contended below correctly.

So, "false," standing alone, is an ambiguous word.

It can mean either intentionally untrue or merely

untrue in point of fact. The denotation of the word

will, therefo~e, depend upon its context.

BRENNAN J:  And in the former of those, whose intention is

relevant?

MR HUGHES:  The intention of the maker of the relevant

statement, Your Honour. The other point we would

make about the first paragraph of my learned

friend's submissions is that there is a touch of

irony about them because, inresponse to a question

put by Your Honour Mr Justice Deane, my learned

friend, despite the exhortation against reading
words into the section, had to read words in himself
to make sense, because he said that one has to

qualify paragraph (i) in section 229(1) in some way

by reading in the word, "material."

DEANE J: 

Do you not need to address in a little more detail
the answer to Mr Justice Brennan's question, in that,

say, for example, what is produced is a false

invoice in the sense it contains a statement which,
to the knowledge of the shopkeeper, was untrue?

Does that suffice if what is done is production of that

statement by the owner of the goods who believes it
to be true?

MR HUGHES: 

We would say that if the person making the entry,

the owner of the goods or his agent, produces an
invoice from the shopkeeper in a foreign country,
or a merchant in a foreign company, which contains

an untrue statement as to price, for instance, and

the owner or his agent presenting the statement does
not know it is untrue, but, in fact, believes it to

be true, that would not be a false statement.

DEANE J: Well, that, as I follow it, different from the answer

you gave to Mr Justice Brennan.

MR HUGHES:  I did not mean it to be, Your Honour.

DEANE J: That is, that the falseness or the knowledge is the person

who makes the statement - - -

MR HUGHES:  I am sorry. I was assuming that the person making

the statement and the owner were the same people.-

the same person.

DEANE J:	But it is relevant in that there is a slight difficulty
in the use of words if "false" there, when what is
involved is the production of a statement by someone else, refers to the knowledge of the person producing
and not the knowledge of the person making the statement
in that prima facie the knowledge included in "false" is in the wrong place.

C2Tl7/l/VH	23	21/4/88
Murphy(2)
MR HUGHES:	The answer to that may be this, we suggest:	that

when the owner or the owner's agent importing	the
goods presents a statement to the customs for	the

purpose of getting the goods in, he is, in a
relevant sense, adopting that statement as his own.

If that is the correct view of what is done in the sort of situation that we are discussing, then it is perfectly consistent, or it is perfectly appropriate,

to give the word, "false" the meaning for which we

have contended.

BRENNAN J: That works satisfactorily so far as - or it may

work satisfactorily so far as entries made by

or on behalf of an owner are concerned.

MR HUGHES:	Yes.
BRENNAN J:	But I confess that if this section extends to

answers given by masters of ships as to their cargo,

then I find it difficult to know whether that answer

will_run.

(Continued on page 25)

C2Tl7/2/VH

Murphy (2) 24 21/4/88

MR HUGHES:  The solution that I would offer to that problem

is that if one looks at all the provisions in

section 229(1) one finds there a miscellany. Some

provisions require guilty knowledg~ or guilty intent,

£OT example (a), smuggled goods, and smuggling,

of course, is defined in section 4 of the Act as

being an importation made:

with intent to defraud the revenue.

Then there is "all prohibited imports". And then

corning down the various paragraphs one gets to

( C ) :

All goods imported or exported in any ship
boat or aircraft in which goods are prohibited

to be imported or exported.

Perhaps, that is not so relevant. But the sort

of situation that Your Honour Mr Justice Brennan

has in mind could well be covered by (e):

All goods found on any ship or aircraft after

arrival in any port or airport and not being

specified or referred to in the Inward Manifest.

BRENNAN J:  Well that is one possibility but let us assume

that the ship is boarded by customs officers -

I found this a moment ago, I think it is section 64 - and answers can be demanded of a master with respect

to the cargo. Now, it may be that the answer that

would be given would be given by reference to the

ship's manifest but it may not be. It may be with

reference to the port of origin and the manifest

might be incorrect but the manifest will not be

sighted or produced. But if the master is asked,

"Where did you take this on board?" and he gives

a false answer it would, would it not, be surprising

if the goods were not then subject to forfeiture

under 229? It is surprising in the sense that

it would leave a large gap in the customs

enforcement procedure. (Continued on page 26)

C2Tl8/l/AC	25	21/4/88
Murphy(2)

MR HUGHES:	But the point that I am trying to make is that that situation may well be covered by
other provisions in section 229(1), Your Honour.
I have given one possible example, which is (e).
I-suppose, to take Your Honour's example, it
could be equally surprising if an inadvertently
untrue answer by the master, who has to deal
extempore with a question put to him by a customs
officer, would lead to the forfeiture of somebody
else's goods. Unless there is some compelling requirement to weight the meaning of the word
"false" in section 229(i) in favour of one
of the two accepted primary meanings, one would
incline, I suggest, to look at the context
and allocate to the word a meaning that, as
we put it, is congruent with the context because of its associated expression.

One is almost tempted to say that the expression,

"false or wilfully misleading" in this paragraph

could be regarded as what Sir Victor Windeyer

called in one case that I recall, an amphibology,

a portmanteau expression conveying the same

essential meaning, something that is wilfully

untrue either because of what it says or because

of what it does not say. One of the cases

we have given in our outline is KYLSANTs(LORD)

case. I do not think I need trouble Your Honour

to read it, it is a very short report, the

reference is given in our outline. That is

a case in which Lord Kylsant was charged - was

indicted and convicted of making a false statement

within the meaning of the relevant prevention

of fraud legislation. The statement was made

in a, I think, prospectus and it was in every

line literally true but it was held to be false

and capable of being false within the meaning

of the legislation, "false" being the relevant

word, not because of what it said but because

of the omission of material facts.

To the same effect, the other decisions to which we alluded in paragraph 3 on page 2

of our outline, COMMONWEALTH HOMES V SMITH,

in this Court and RV Min the Court of Criminal

Appeal in New South Wales. I will not go to

that. That is a possible view - we do not

have to go that far.

(Continued on page 27)

C2Tl9/l/SDL 26 21/4/88

Murphy(2)
MR HUGHES (continuing): What we say simply is what we have

said in paragraph 2(a) and 2(b). The only

relevant context for determining the meaning of

"false" is the context of the particular paragraph

in-which that word appears, for this reason, that

if one looks at the miscellany of forfeiture

provisions, one finds some of them depend upon

acts or states of affairs which involve intent

and others clearly do not. In that connection,

the position is the same sort of statutory

position that was the subject of treatment in the

case referred to by Sir Douglas Menzies at

page 433 of the report of FORBES' case, 126 CLR 433.

On that page there is a citation from the Scottish

case of LORD ADVOCATE V CROOKSHANKS and

Sir Douglas Menzies cites a passage in the

Lord President's judgment in which commenting on

the United Kingdom legislation that is there in

question, the Lord President said:

Some of these -

meaning the grounds of forfeiture

require guilty knowledge, others do not.

Section 229(1) is in like case.

My learned friend founds upon what

Sir Douglas Menzies said at page 433. We say,

in reply, quite simply that this is a case dealing

with section 229(l)(i) in which the statute provides

expressly that forfeiture is conditional ur.on

knowledge because, giving the word "false' a

meaning that is congruent with its neighbouring

expression, even if that neighbouring expression

is not part of one gl9bal expression, the

word means 'cleliberately false".

(Continued on page 28)

C2T20/l/ND	27	21/4/88
Murphy(2)

MR HUGHES (continuing):  My learned friend has submitted to

the Court that there is no incongruity in a

prescription that a misleading statement, in order to

attract forfeiture, must be wilful, intentionally

misleading, while an untrue statement need not

be ~eliberately untrue. We submit it is a matter

of impression, that clearly there would be an
incongruity and, if one is looking for a reasonable
degree of symmetry in the interpretation of this

statutory provision one would give one of the accepted

primary meanings to this word "false" because that fits

in with the concept of wilfulness applied by the

legislature to the word "misleading".

There was no need, we say, for the legislature

as my learned friend submits, there would have been
or should have been, to put the word "wilfully"

in front of "false" because false is a word that

carries that as one of its primary meanings.

BRENNAN J:  Is that entirely accurate, Mr Hughes? If one

makes a statement that is true in all particulars

it may yet be misleading. Indeed, I think the case

that you referred to is an indication of that.

MR HUGHES:	It may be false.
BRENNAN J:	It may be false -
MR HUGHES:	Yes.
BRENNAN J:	- - - in the sense that it produces an impression

in the mind of the hearer or reader which is different

from the impression which the maker of the statement

knows to be true, but if the statement itself, on its face, is true, would one not need the word "wilfully" before one penalized the forfeited goods if there was

a true statement made, yet it was misleading to a

customs officer?

MR HUGHES:  No, one would not, Your Honour, with respect,

because the legislature could have chosen to penalize something that is misleading in point of fact without reference to intent. It could have done that.

BRENNAN J:  Even though the fact which gave it a misleading

character is one which does not inhere in the document

or its statements, but in surrounding circumstances

known to the customs officer?

(Continued on page 29)

C2T21/l/HS	28	21/4/88
Murphy(2)

MR HUGHES:	All I am saying, Your Honour, is that it would have been perfectly open to the legislature to
create forfeiture - to impose forfeiture for an objectively misleading statement, a statement
th.at is misleading in an objective sense because
the whole of the relevant facts are not stated.
BRENNAN J:	Is not the problem about the term "misleading",

that it is not fully meaningful in an objective

sense?

MR HUGHES: Well, "misleading" was, in our submission,

correctly defined in the context by Mr Justice Priestley,

I think, at about page 146. Your Honours will see

that in section 229 there is another provision to

which Mr Justice Priestley referred - no, I am sorry,

not another provision. I was thinking of what

His Honour Mr Justice Priestley had to say at

page 147. When His Honour was dealing with section 234

His Honour set out section 234(d), (e) and (f).

"make or give any entry which-is false_ in a particular..	Section 234(d) has been read by my learned friend, et cetera.-"a statement which is untrue in any
particular". Section 234(f), "mislead any officer
in any particular likely to affect the discharge of
his duty".

Now, the word "mislead" there would, consistently

with accepted principles enunciated in this Court

in case like CAMERON V HOLT, or perhaps more

particularly HE KAW TEH, be regarded as meaning

misleading point of fact, with this proviso, that the person charged with the offence of misleading

would be entitled to raise an issue in his defence

that he honestly and reasonably believed in facts

which, if true, would have made his statement a

non-misleading statement. I am merely pointing to

"mislead" in the context of section 234 in an

endeavour to meet what Your Honour Mr Justice Brennan

has put to me, that the legislature had in mind

a distinction between "misleading" on the one hand, (Continued on page 30)

and''wilfully misleading'on the other.

C2T22/l/JM	29	21/4/88
Murphy(2)

DEANE J:	There are statements in some cases to the effect that if you make an intentionally misleading statement,
it is a false statement. Are there any cases in
which it has actually been held that a statement
wh1ch was untrue or wrong was not a false statement
because of lack of knowledge?
MR HUGHES:	I know of none but, of course, the context in

which one is dealing with the word "untrue" or

"false" if it appears in a piece of legislation

is so important. If the context is that of a statute

which is creating statutory criminal offences one

might well import the concept of mens rea into

the word "untrue" and that was CAMERON V HOLT.

HE KAW TEH extended CAMERON V HOLT and Your Honours - - -

DEANE J:  Yes, except mens rea is a slightly different area.

MR HUGHES: It 1s.

DEANE J:  I can see the fore~ as a matter of impression, of

your approach that "false" can mean knowlingly

untrue but just looking, in a casual fashion, I

have not found any statement of authority that

says that.

MR HUGHES:  One does not, with respect, need to go to authority

because the dictionaries tell us - and I am sorry

I did not bring the dictionaries, but this case

has proceeded below on the basis that there are

two meanings of equal value of the word "false".

I can certainly provide the Court with the dictionaries

but that has not been in contest.

DEANE J: Well, not for my sake, Mr Hughes, but it would help if there was some authority that spelt out

that in this sort of context "false" did, on occasion,

mean knowingly untrue.

(Continued on page 31)

C2T23/l/AC	30	21/4/88
Murphy(2)

MR HUGHES:  Yes, well, I cannot point to any at the moment. I can - - -

DAWSON J: ..!fhe dictionary gives the meaning of "deceitful",

does it not?

MR HUGHES: Yes. "Knowingly false", "knowingly untrue".

DAWSON J: Well, that is what "deceitful" is.

MR HUGHES:  Yes, exactly, Your Honour. I am so sorry, I was

not meaning to contradict Your Honour. I have in

mind one dictionary meaning which uses the two words

instead of Your Honour's one.

BRENNAN J:  Am I right in thinking, Mr Hughes, then, that your

argument is that it would not be sufficient if, for

the purposes of forfeiture, the statement was
negligently untrue. In a sense, the person making
it did not take any care as to whether it was true,

did not take reasonable care to discover whether it

was true or not.

MR HUGHES:  Yes, I would say that.

BRENNAN J: Yes.

DAWSON J: What about "recklessness"?

MR HUGHES:  Your Honour anticipated me. Going back to

DERRY V PEEK, ore is instructed - and this has remained

a principle of the common law in relation to deceit

that if one is so careless of the facts that one's

state of mind is that one is unconcerned as whether

what you are saying is true or false, that is

equivalent to fraud. A reckless indifference to

the truth or falsity of what you have said is

equivalent to knowing falsity. It is a form of

deceit. My argument can accommodate to that

refinement but it would not accommodate with

respect to negligence.

It is significant, we suggest, that section 229

appears in a part of the Act which is headed "penal

provisions" and, of course, in section 13 of the

ACTS INTERPRETATION ACT tells one that one is

entitled to look at the heading as an aid to

interpretation because it is part of the Act.

(Continued on page 32)

C2T24/l/SH	31	21/4/88
Murphy(2)

MR HUGHES (continuing): If the word, "false" is to be treated

as an ambiguous word, as I suggested it was, we would

call in aid the principle that in a case of ambiguity
the Court will lean towards a construction that

fa"\Wurs the subject rather than the enforcing

authority. That is BECKWITH V REG, a decision which

I need not read. The particular passage is in the

judgment of Sir Harry Gibbs at page 576. We have

referred Your Honours to the authorities,which I

need not read, which establish the proposition that
there is no inflexible rule; that the same word
occurring in different parts of a statute must have

the same meaning in each part.

There is a presumption that it has been described

as but a slight presumption, and we have collected

the cases, and I shall not trouble Your Honours to

read them. My learned friend understandably seek to

draw support for his argument from decisions on

section 234(d) and (e). In particular, he relied upon

STERNBERG's case.	I will say something about
STERNBERG's case in a moment.	The line of decisions

on the meaning of section 234(d) go back to two

early Victorian cases:	STEPHENS V ROBERT REID and
DAWSON V JACK.

(Continued on page 33)

C2T25/l/VH	32	21/4/88
Murphy(2)

MR HUGHES (continuing):  I should make it clear that our

primary submission is that there is such a lack

of symmetry in these provisions in Part XIII

that there should be no presumption applied, in II fa 1 s e II

tni s ca s e , th a t the word in s e c t ion 2 3 4

governs the meaning of the same word in the context

of section 229(1)(i). I do want, however, in a

precautionary way to make a brief survey of the

line of case law on section 234, Your Honours,

because when one looks at the cases in the line

one will see some rather unusual features which

perhaps would incline this Court, if necessary,

to consider the matter afresh. For instance, in

STERNBERG's case in this Court which was an

application for special leave to appeal the case

was presented for the applicant on the -

88 CLR 646, Your Honours, the case was presented

for the applicant on a very narrow ground and the
ground involved the question as to what was the

nature of the relevant statement, the making of

which gave rise to the charges.

It was contended on behalf of the applicant,

who had been convicted below, that all that had

been relevantly stated on his behalf was an opinion

as to the value of the goods and as to that opinion

it was said there was no evidence that the opinion

was believed to be falsely expressed. The case

was decided on the footing that the statement was

not a statement of opinion but relevantly a statement

of objective fact which was untrue, false in that

particular sense. And Dr Louat, who presented

the case for the applicant, expressly disclaimed the idea that there was any question of mens rea involved for consideration.

(Continued on page 34)

C2T26/1/ND	33	21/4/88
Murphy(2)

MR HUGHES (continuing):  Your Honours will find that, first

of all,at page 649 about four lines from the top of

the page:

The material words ins. 182 have

the intention of making the owner and the agent equally liable, neither one

more than the other, for a wrongful

act done in the course of carrying out

those duties. That is not in any sense

a question of mens rea.

Further down the page Dr Louat said something to the

same effect. If Your Honours please, in the

sixth last line on the page, just after the sentence

in which TARRANT's case is referred to, Dr Louat said:

It is not an argument in favour of mens rea
in regard to s. 234(d) because it is based

upon the form.

So there are two disclaimers of any point being taken
that mens rea had to be proved in order to establish
an offence under section 234(d) of the CUSTOMS ACT.

It is curious, one might think, that that point,

that "false" in section 234 (d) means deceitfully false

because one might think, Your Honours, that anyone

looking at section 234(d), unencumbered by a course

of judicial decisions might alight on the point

that there is a plain distinction between

section 234(1)(d), which uses the word "false".

and section 234(1)(e) which uses the word "untrue",

and one would have thought that that was fertile ground

for an argument that "false" means deceitful in the

former paragraph.

However, when the earlier cases were decided, and

the earlier cases seem to have coloured the approach
to section 234, understandably, one finds they are
both reported in the same volume of the Victorian Law

Reports, volume 28.

(Continued on page 35)

C2T27/l/HS	34	21/4/88
Murphy(2)
DEANE J:	Except that is a bit illogical, is it not 1 in that if you	expected that distinction it woula have been
the other way around?  I mean, it is a bit
strange to say that if you make an untrue entry
Tt must be knowingly untrue, but if you produce any of those peripheral things it just has
to be untrue.

MR HUGHES:  The problem is that this is a patchwork,

Your Honour.

DEANE J:  All I was saying is your argument would be stronger

if the words were transposed.

MR HUGHES:  Yes. I only want to survey the history very

briefly:  when one goes back to the early Victorian

cases, the first one is STEPHENS V ROBERT REID,

(1902) 28 VLR 82, a decision of Mr Justice Hodges,

and the headnote propounds the finding or a

conclusion that:

the existence of mens rea is not essential

to the establishment of an offence under

section 234(e) of the Commonwealth CUSTOMS

ACT 1901, which provides that no person

shall "make in any declaration or document

produced to any officer any statement which

is untrue in any particular.

So that was a case about section 234(e), not (d).

His Honour had no difficulty - one might appreciate he would not have - in coming to the conclusion

that the word "untrue" simply meant "objectively

untrue" and I do not think I need read the

judgment. Having regard to the views held

in those days, judicially, as to the relative

unimportance or, perhaps, total unimportance

of mens rea in relation to statutory offences,
that approach is fully understandable, with

respect.

Then one comes to DAWSON V JACK and that

was a prosecution under section 234(d).

(Continued on page 36)

C2T28/l/SDL	35	21/4/88
Murphy(2)

MR HUGHES (continuing):  The point I would make about this

case is tha~ as far as one can see from the report,
the necessity of mens rea, from a viewpoint of

establishing an offence against 234(d), was not

argued. What seems to have been argued was that

a principal was not liable for the acts of his

agent if he did not know, in effect, what his agent

was about and the whole argument was cast upon

the question of vicarious liability. So those

are the cases that, as it were, are the starting

point of the learning on section 234. And when

one goes through the later cases one comes next,

I think it is right to say, to RV AUSTRALIAN FILMS LTD,

(1921) 29 CLR 195 - I will not read that - but

it will be seen, if one does read it, that the

question in that case was, again, one of whether

there was a vicarious liability for an offence

under section 234. Could one be convicted for

what one's agent did in the way of making an untrue

false statement?

In the next case EX PARTE FALSTEIN RE MAHER,

to which we have referred on page 3, no attention

was ever given to the verbal distinction between

"false" in (d) and "untrue" in (e). Likewise in

DAVIDSON V WATSON; nobody seems to have noticed

the distinction and I invite my learned friend
to correct me, in order to save time, if he thinks

I am wrong, but as I have read DAVIDSON V WATSON, and I do stand to be corrected, the point of mens

rea does not seem to have been raised in the argument

in this Court.

I have already dealt with STERNBERG V REG.

I should make reference, briefly, to the case in

120 CLR to which my learned friend referred, that

is, L. VOGEL V THE MINISTER FOR CUSTOMS, 120 CLR 157.

My learned friend relied upon a portion of the joint

judgment at page 169 and the passage upon which

my learned friend relies, Your Honours, was really

a passage in which the Court expressed a somewhat

tentative view:	This section, it seems to us, picks up the
offences created by pars. (c), (d), (e) and
(f) of s. 234 and effects a forfeiture of
the goods in respect of which any false entry
is made.

(Continued on page 37)

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MR HUGHES (continuing): Their Honours did not have to give any

consideration to the particular question that arises
in this appeal. It was, if I may say so, an

observation in the nature of a somewhat passing

remark. So we would say that, in any event, one does

not get any assistance from section 234 and we venture

to say that that point is made good to some extent in

part by a survey of the history of the section 234 cases.

I said that the summary was the argument, and I expect

I can be accused rightly of having falsified my own

statement but, really, Your Honours, there is little

more that can be said about a very short point except

this, that we would rely, in particular, upon -

DEANE J:  I think you would prefer to say disproved, rather

than falsified, would not you?

MR HUGHES:  Falsified - yes - proof, yes, Your Honour. hoist

with my own petard. That only goes to demonstrate

what a chameleon word "false" or "falsify" is.

DEANE J:  While you are on that, Mr Hughes, I notice that the

first of the second alternative meanings in the

Oxford Dictionary is, "purposely untrue," which,

from the point of view of your argument, possibly

fits into this section better than "knowingly untrue."

MR HUGHES:	Yes, "purposely untrue," - yes, Your Honour. Yes, indeed, it would.
BRENNAN J:	Mr Hughes, I have just been glancing at the case of PRINCE V REG, IR 5 PC 1 has that been a case that
has been drawn to your attention - - -
MR HUGHES:	No, Your honour.
BRENNAN J:	Or which illuminates the problem in any way?
MR HUGHES:	No, Your Honour, I must confess it has not.
BRENNAN J:	There seems to be some discussion, though I

have not mastered the discussion, as to the difference

between "fraudulent or wilful falsity" on the, ,one

hand, and "falsity without wilfulness on the other,

but I am not sure whether or not the statues are

comparable.

MR HUGHES: In pari materia, yes.

(Continued on page 38)

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Murphy(2)

MR HUGHES (continuing): Yes, it is very difficult to find

cases dealing with the word "misleading". The

only cases I have been able to find are cases
such as the ones we have cited, and RV Mis

a good example, where there was a charge of

publishinga misleading statement under the

SECURITIES INDUSTRY ACT and the Court of Criminal

Appeal in New South Wales said "misleading" in that

context meant something which, as a statement,
was literally true but falsified by reason of

that which is omitted and Their Honours referred

to KYLSANT and to COMMONWEALTH HOMES.

The only other matter to which I wish to

refer is that we do place reliance upon

Mr Justice Priestley's analysis at pages 147,

line 16 to 148, line 21 of the appeal book. We would

respectfully submit that His Honour's analysis is

right.

TOOHEY J: Mr Hughes, if your essential argument is that

the meaning of "false" is wrong, then no doubt

the appeal must be allowed. What are the

consequences of allowing the appeal by way of

orders that ought to be made by the Court, because

this was in the form of an action for declaration

that there had been no forfeiture - - -?

MR HUGHES:	Yes, no forfeiture.
TOOHEY J:	The appellant, according to the notice of appeal,

seeks a declaration from this Court that there was

a forfeiture - - -

MR HUGHES:	Yes, that there has been a forfeiture.
TOOHEY· J:	Ought we go that far, or is it enough that

your client's claim, seeking a declaration of

non-forfeiture, be dismissed?

MR HUGHES: That would be sufficient.

BRENNAN J: This turns on a provision of the Act, does it not.

MR HUGHES: Actually, I am reminded by Mr Burbidge that

the car was released upon posting a bond - giving

a bond - posting a bond. So that - - -

(Continued on page 39)

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BRENNAN J:  The action was brought pursuant to a notice delivered, was it not?

MR HUGHES;-Yes, and the result of allowing the appeal would

be that the bond moneys would fall to the revenue.

TOOHEY J:	You mean, there would be no forfeiture?
MR HUGHES:	The car passed into the possession of the

respondent upon his posting a bond so that the

bond to pay money stands in lieu of the allegedly

forfeited vehicle.

BRENNAN J: Well, this is a problem that arises under

section 208A, is it?

MR HUGHES:  Yes. My learned friend - - -

BRENNAN J:  So, the seeking of the declaration is pursuant to

208A(3) (b).

MR HUGHES:  Yes, we were given such a notice under (3)(b)

and we brought - - -

TOOHEY J:  The Act does not, then, trace through the implications

of seeking a declaration from the Court and the

consequences of that declaration. In a sense, that

is left to the Court itself.

MR HUGHES:	Yes.
TOOHEY J:	If we were against you in your argument, it may be

that the appropriate order would be to allow the

appeal and dismiss your client's application. I

am not sure whether that, though, would have a

consequence that the vehicle would, then, stand

forfeited.

MR HUGHES:  Well, because of what was done, the vehicle would

not stand forfeited but the bond moneys would.

BRENNAN J:	Because the condition in the bond would be satisfied?
MR HUGHES:	Yes.

(Continued on page 40)

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BRENNAN J:	So from your point of view, what order, if the Court should be against you, would you submit to
be the appropriate order that the Court should
make?
MR HUGHES:	That the appeal be allowed and that the

declaration made by the primary judge be set aside.

This was a case in which it was a condition of the grant of special leave that the respondent's costs of the appeal be paid in any event by the

appellant.

BRENNAN J:	I am grateful to be reminded, Mr Hughes.
MR HUGHES:	I hope the reminder will not be relevant.
BRENNAN J:	Of course.
MR HUGHES:	Unless there is anything else, Your Honours,

I have probably said more than necessary on a

point about which not a great deal can be said.

BRENNAN J:	Thank you, Mr Hughes.	Mr Burbidge.
MR BURBIDGE:	Thank you, Your Honours.	Your Honours, could

I return to the question of the sight entry raised

by Your Honour the presiding Judge, not to make

any submission but simply to indicate what I believe

may be the answer to the question. The obligation,

of course, to enter goods sterns from section 36
and I do not need to take Your Honours to that.

I have already read it, in fact. The section which

relates to sight entries is section 69 of the Act.

That section provides:

The regulations may provide for the

making of, and the effect of, an entry, to

be known as a "sight entry", by an owner of

goods that are required or eligible to be

entered who does not have sufficient

information in relation to the goods to enable

him to make an entry in respect of the goods

under section 36.

(2) A sight entry shall not be taken to be

an entry for the purposes of a provision of
this Act other than a provision specified

in the regulations.

My learned friend indicates he has available copies

of the relevant regulations. I am happy if he

wants those to go forward to Your Honours for

Your Honours to have them.

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MR BURBIDGE (continuing):  I think perhaps the relevant

regulations, however, which I am afraid I do not

have copies of, are in fact regulations 35 and 36

which precede those which I think my learned friend

has provided. If I may simply read them, simply

coindicate that they do not affect which might

be thought to be the obvious effect of the

section 69. Regulation 35 provides:

A sight entry shall be in accordance

with fo~w10.

And section 36 provides:

When a sight entry is paid for part

of the contents of an outside package

it shall be accompanied by an entry

not being a sight entry for the

remainder of the contents of the

package.

So that, nothing being said in the regulations,

we would perceive that s-ection 69(2) simply

provides that:

A sight entry shall not be taken

to be an entry for the purposes

of a provision of the Act other

than as specified in the regulations.

BRENNAN J:  Is a sight entry a declaration or a statement for

the purpose of section 229?

MR BURBIDGE:  We would think not, Your Honour. It is something

to which we have not directed any thought, but an

entry has such a formal meaning within the context

of the CUSTOMS ACT that we would not see that a __

sight entry is anything other than a document

specifically brought into being in accordance with

the provisions of section 69. We would not see it

as being available as a statement or some more

generalized document.	I think that is all we can
say of that matter, Your Honour.

Your Honours, my learned friend did say in

relation to the question of knowledge that, I think

in response to a question fran your Honour Mr Justice Brennan

that if a statement were made negligently, or even recklessly, then he suggested that recklessness at

least might be equated with fraud. In our submission,

we would simply say that whether or not it may be

equated with fraud, it is not to be equated with

knowledge, and we would remind Your Honours of the

decision of this Court in GIORGIANNI V REG.

It is reported in the Commonwealth Law Reports. We

have only managed to obtain the Australian Law Reports

report which is in (1984/85) 58 ALR 641.

His Honour the Chief Justice, Mr Justice Gibbs said

at page 651, line 35:

C2T34/l/HS	41	21/4/88
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MR BURBIDGE (continuing):

My view of the law may be summed up

very shortly. No one may be convicted

of aiding, abetting, counselling or procuring

the commission of an offence unless, knowing

all the essential facts which made what

was done a crime, he intentionally aided,

abetted, counselled or procured the acts

of the principal offender. Wilful blindness,

in the sense that I have described, is

treated as equivalent to knowledge, but

neither negligence nor recklessness is

sufficient.

So we would submit that recklessness does not

equate to knowledge. Further, my learned friend

did suggest that the cases on paragraph 234(l)(d)

were - his word was "coloured" - by the earlier

cases from Victoria, STEPHENS V ROBERT REID .

and DAWSON V JACK. We would submit that, certainly

in STERNBERG's case, there is nothing within

the reporra which suggests either that these

cases were advanced in argument, nor did they

receive any attention in the judgment itself.

Finally, Your Honours, my learned friend

did suggest that the question of mens rea did

not appear to have been advanced in DAVIDSON

V WATSON and the report is not entirely clear
but certainly it is appropriate to draw to

attention that at page 64, volume 2, point 5 in the

judgment of the Court, Their Honours did record

this matter:

"False" in s.234(d) means contrary to fact.

The contention that, consistently with

the evidence, the appellant may have believed,

when he made the entry, in a state of facts
which, if true, would have afforded a

defence can, in our opinion, find no support

either in law or in fact.

So, whilst it is not entirely square with the

contention that my learned friend was discussing,

it rather seems that the Court had in mind

the ideas - the shifting of an evidentiary

onus at least. Those are our submisions in

reply, may it please the Court.

BRENNAN J:  Thank you, Mr Burbidge. The Court will consider

its judgment in this matter and will adjourn

to Sydney at 9.30 am tomorrow morning.

AT 12.15 PM THE MATTER ADJOURNED SINE DIE

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