Stincovic, B. v Commissioner of the Australian Federal Police

CATCHWORDS
CUSTOMS AND EXCISE - Seizure of motor vehicle based on belief that vehicle used in unlawful conveyance of prohibited import, namely heroin - Vehicle originally detained by police as evidence in criminal proceedings - Decision to seize taken at later date - Whether action taken Ln relation to vehicle amounted in law to seizure - Notice of seizure given to person not being the owner or the person having possession immediately before seizure - Notice defective in number of respects - Copy of defective notice subsequently sent to owner by post - Copy returned to sender unclaimed - Whether police entitled to retain possession of vehicle.
Customs Act 1901 (Cth), ss.30, 33(1), 203, 205, 208C,
229(1)(j), 233, 233B
Acts Interpretation Act 1901 (Cth), s.29
BOGDIN STINCOVIC v. COMMISSIONER OF THE AUSTRALIAN FTDERAL
POLICE
No. ACT G 55 of 1988
Neaves J.
29 June 1990
Canberra

REDISTRY

FEDERAL COURT OF

AUSTRALIA PRINCIPAL
IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 55 of 1988

DISTRICT REGISTRY

) )
GENERAL DIVISION 1

BETWEEN: BOGDIN STINCOVIC

Applicant

AND: COMMISSIONER OF THE AUSTRALIAN
FEDERAL POLICE

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER : Neaves J.
DATE OF ORDER : 29 June 1990
-E MADE : Canberra
THE COURT ORDERS THAT:

1.

The respondent, within 21 days from the date of this order, deliver to the applicant in good order

and condition Holden Commodore motor vehicle

registration number (N.S.W.) 00E-709.

2.

The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 55 of 1988
DISTRICT REGISTRY 1
)
GENERAL DIVISION )

BETWEEN: BOGDIN STINCOVIC

Applicant

AND: COMMISSIONER OF THE AUSTRALIAN
FEDERAL POLICE

Respondent

CORAM: Neaves J.
m: 29 June 1990
REASONS FOR JUDGMENT

By his amended application, Bogdin Stincovic ("the applicant") seeks a declaration that the seizure of Holden Commodore motor vehicle registration number (N.S.W.) 00E-709 by an officer or offlcers of the Australian Federal Police pursuant to 5.203 of the Customs Act 1901 (Cth) ("the Act") was

delivered to one Joan Tomici on 8 March 1988 was not a notice unlawful or, alternatively, declarations that the notice

complying with the requirements of sub-s.205(2) of the Act, that no notice under sub-s.205(2) has been served in accordance with that sub-section and that, if there has been a lawful seizure of the motor vehicle, no notice may now be served under that sub-section by reason of the lapse of time since the date of such seizure. The applicant also seeks an order that the respondent, the Commissioner of the Australian Federal Police, deliver the motor vehicle in good condition to the applicant forthwith and an injunction restraining the respondent, his officers, servants and agents from disposing of or otherwise dealing with the motor vehicle. The source of the Court's jurisdiction to entertain the application is said to be s.39 of
the Judiciary Act 1903 (Cth).

After the hearing had concluded and judgment had been reserved counsel for the parties were invited to make written submissions on an aspect of the matter which was not canvassed at the hearing. The giving of judgment in the matter has been delayed pending the receipt and consideration of those written submissions the last of which was not received until 22 June 1990.

By the statement of claim filed on his behalf, the applicant alleges that he is and was at all material times the owner and entitled to the possession of the motor vehicle in question; that the Australian Federal Police took possession of

the motor vehicle "for the purpose of using it as evidence in certain criminal proceedings"; that those proceedings were

completed in June 1988; that no appeal has been instituted in relation to those proceedings; that the Australian Federal Police have wrongfully detained the motor vehicle from the applicant; and that, notwithstanding a demand for the return of the motor vehicle, the Australian Federal Police "have wrongfully failed and refused to deliver it up to the applicant and have thereby converted it to their own use and wrongfully deprived the applicant of it".

By the amended defence filed on his behalf, the respondent does not admit that the applicant is and was at all materlal times the owner and entitled to possession of the vehicle. The taking possession of the vehicle for the purpose mentioned and its subsequent detention is admitted but it is denied that the detention is wrongful. The other allegations

in the statement of claim are denied. It is asserted-on the respondent's behalf that, on or about B March 1988, Detective Constable Tompsett of the Australian Federal Police seized the vehicle pursuant to sub-s.203(2) of the Act, such seizure being based on the belief on reasonable grounds held by Detective Constable Tompsett that the vehicle was "forfeited goods" within the meaning of that expression as used in the Act. It is further asserted that on B March 1988 Detective Constable

Tompsett served on the person who had had possession, custody and control of the vehicle immediately before it was seized a notice pursuant to sub-s.205(2) of the Act and that that person did not, within 30 days after the day on which the notice was
served, give notice in writing to the respondent or a Deputy

that on or about 21 March 1988 Detective Constable Tompsett claimed the vehicle. Further, or alternatively, it is asserted Commissioner of the Australian Federal Police stating that he

caused to be served by post on the applicant a notice pursuant to sub-s.205(2) of the Act and that the applicant did not, wlthln 30 days after the day on which the notice was served, give notice that he claimed the vehicle. It is to be noted that the defence does not allege factual material designed to show that the vehicle was, in terms of s.229(l)(j), used in the unlawful conveyance of any goods.

By his reply, the applicant denies that the seizure of the vehicle took place on or about 8 March 1988. The applicant, while admitting that a document was served on Mr Tomici and that Mr Tomici did not give any notice in writing claiming the vehicle, denies the other matters of fact alleged in the amended defence. It is further asserted that, if the vehicle was seized on or about 8 March 1988, Mr Tomici did not, immediately before it was seized, have possession, custody and control of the vehicle and that the notice given to him did not comply with the provisions of sub-s.205(2) of the Act. Further, or in the alternative, it is asserted that the vehicle was seized on or about 20 December 1987 and that no notice pursuant to sub-s.205(2) was given following the seizure or, if such notice was given, it was not given as soon as practicable after the seizure to the person who had possession, custody and control of the vehicle immediately before it was seized or, alternatively, to the owner of the vehicle and accordingly such notice was void and of no effect. In the further alternative, it is asserted that, if the motor vehicle was seized on or

about 8 March 1988, no notice to the owner of the vehicle was given pursuant to sub-s.205(2) or, if such notice was given, it

was not given as soon as practicable after the seizure and accordingly such notice was void and of no effect. The applicant admits that Detective Constable Tompsett sent by pre-paid post a copy of the document served on Mr Tomici addressed to Bogdan Stancov at 5/83 Riverside Crescent, Dulwich Hill but asserts that the document sent to the applicant was not sent pursuant to or for the purposes of sub-s.205(2) of the Act. The applicant admits that he did not give any notice to the respondent or a Deputy Commissioner of the Australian Federal Police in relation to the motor vehicle on or before 22 April 1988.

The applicant relied on an affidavit sworn bp himself on 23 November 1988. The respondent relied on the two several affidavits of Detective Constable David Geoffrey Tompsett sworn respectively 10 February 1989 and 1 August 1989 and the affidavit of Christopher John Nightingale sworn 27 July 1989.

The deponents of these affidavits were not cross-examined. No
oral evidence was adduced by either party.

At the relevant time Detective Constable Tompsett was attached to the Australian Federal Police Drug Squad in the Australian Capital Territory. Consequent upon the receipt on 19 December 1987 of information from an informant, an investigation was commenced into the involvement of certain persons in the sale of heroin in the Territory. Those persons were alleged to be staying at a motel in Canberra. Detective

Constable Tompsett was placed in charge of that investigation.

In the course of the investigation, the motor vehicle in question was observed parked at the motel. Detective Constable Tompsett was informed by another officer of the Australian Federal Police that a registration check on the vehicle had shown it to be registered in the name of Bogdan Stancov. Search warrants under sub-s.50(2) of the Poisons and Narcotics Druqs Ordinance 1978 (A.C.T.) were executed in

respect of two rooms at the motel and the occupant of one of the rooms at the motel was interviewed. That person was

arrested and subsequently charged with drug offences. At the

time of the execution of the search warrants, the vehicle in
question was not at the premises. However, at about 4.30 a.m.
on 20 December 1987, the vehicle was observed returning to the

motel premises. The driver of the vehicle was Mr Joan Tomici.

Mr Tomici and the passenger in the vehicle were searched as was

the vehicle. In the engine compartment of the vehicle a clear plastic bag containing a quantity of white powder was found.

Detective Constable Tompsett formed the belief that the powder was heroin, a belief which was later confirmed upon analysis of

the powder. Photographs were taken of the vehicle and of the

plastic bag of white powder. On the instructions of Detective Constable Tompsett, another officer of the Australian Federal

Police, Constable Hall, took the vehicle to the Scientific

Branch for examination. The evidence does not establish what

was done with the vehicle thereafter except that it remained in
the possession of the Australian Federal Police.

In the course of an interview with Detective Constable Tompsett on 20 December 1987, Mr Tomici said that the vehicle was owned by Stancov Bogdan who had given his permission for Mr Tomici to use it, that he, Tomici, had driven the vehicle from Sydney with three passengers three days before and that he had subsequently driven the vehicle around Canberra. Following the interview, Mr Tomici was arrested. Later on the same day, Mr Tomici informed Detective Constable Tompsett that the plastic bag taken from the motor vehicle contained heroin which he had

purchased in Sydney on 15 December 1987 and had brought to
Canberra for sale.
Detective Constable Tompsett stated in his affidavit sworn on 10 February 1989 that late in the. evening of 20 December 1987 he formed the belief that the heroin found in the engine compartment of the vehicle had been conveyed in the vehicle from Sydney to the motel. It was not disputed by the applicant that Detective Constable Tompsett formed,that belief or that he did so on reasonable grounds.
On 12 January 1988 Detective Constable Tompsett had a conversation with the applicant. In that conversation the applicant said that his name was Bogdan Stancov and that his address was 5/83 Riverside Crescent, Dulwich Hill. He said he was the owner of the motor vehicle in question and that he had loaned it to Mr Tomici so that he might look for a job. According to the record of interview the following conversation took place, "I" referring to Detective Constable Tompsett and "He" to the applicant:

"I SAID: 'I am going to make an application to the authorities in Canberra to have your car forfeited to the Government because I believe it has been used to transport heroin. Do you understand that?'
HE SAID: 'Yeah, I understand.'

I SAID:

'You will be advised in due course about the procedures involved. Do you understand that?'
HE SAID: 'Yeah, I understand.'"

!	Paragraph 54 of Detective Constable Tompsett's affidavit sworn on 10 February 1989 reads as follows:

"After referring to the provisions of the Customs Act 1901 and taking into account my beliefs that I had already formed concerning the heroin I had located in the Commodore, I formed the further belief that the Commodore had been used in the unlawful conveyance of a narcotic good and was therefore forfeited to the Crown pursuant to paragraph 229(1)(j) of the Act. I decided that the Commodore should be seized pursuant to the provisions of that Act. As required by Australian Federal Police administrative procedures, I began preparing a minute requesting permission to issue a seizure notice in accordance with the provisions of that Act. My first two minutes submitted on 4 January 1988 and 25 January 1988 respectively, were returned by my superior, Superintendant Csicl Brinkler, with a request for further information. On 3 February 1988, I submitted a further minute which Superintendant Csicl

Brinkler accepted ..."
The minute dated 3 February 1988, addressed to the
Officer in Charge, Special Crime Sections, is in evidence.
After setting out the history of the matter, the minute

I	concluded as follows:

used by TOMICI and others to transport heroin "18. As the vehicle in question was knowingly

from Sydney to the A.C.T. and as there is some suspicion relating to STANCOV's knowledge of this, I request permission to issue a seizure notice in accordance with the Customs Act 1901.
19. Forwarded for your information."
A recommendation that the issue of the seizure
notice be approved was made to the Assistant Commissioner,
A.C.T. Command, by the Chief Superintendent, Operations on

- 3 , . 5'.

l :. '

C4 February 1988. The Assistant Commissioner endorsed the

papers on 29 February 1988 that he agreed with the recommendation. On 2 March 1988 Detective Superlntendent Northy endorsed the papers as follows:
"Seizure notice to Issue strictly in accordance with GO 24A. One notice only with duplicate of original to be served on the owner. Discuss if not clear."

The abbreviation "GO" appears to denote "General Order".
General Order 24A is not in evidence.
On 8 March 1988, Detective Constable Tompsett signed a printed form bearing the heading "Australian Federal Police - Notice of Seizure - Narcotic Related Goods". The form contained a space for the insertion of the name of the addressee of the notice, the document bearing the notation " (Name of owner or person in
possession/custody/control of goods when seized)". In that

space the name "Mr Joan Tomici" had been inserted, his address being shown as c/- Belconnen Remand Centre. Rae Street, Belconnen, A.C.T. The body of the document was in
the following terms:
"NOTICE IS HEREBY GIVEN PURSUANT TO SECTION 20512) OF THE CUSTOMS ACT, 1901 that on the Eighth day of March 1988 at Forrest Lodge Motor Inn, 30 National Circuit, Forrest, A.C.T. the following 'narcotic related goods' were seized as forfeited to the Crown in accordance with the powers conferred by SECTION 203 of the Act.
DESCRIPTION OF GOODS SEIZED
One 1983 Model Holden Commodore Sedan, blue in colour, bearing N.S.W. registration number plates OOE 709, body number 864942M, engine number VL407552.
REASON FOR SEIZURE
I, David Geoffrey TOMPSETT, an authorized person within the meaning of the expression in Section 203 of the Customs Act 1901 believe on reasonable grounds that the goods forfeited under Section 229(1)(j) of the said Act for the reason that the above described goods being a carriage used in the unlawful conveyance of narcotic goods in contravention of the said Act."

It is clear that some amendment needs to be made to the statement of the reason for seizure to make the statement read grammatically. The following notation appeared at the foot of the notice below Detective Constable Tompsett's signature:
"IMPORTANT: SECTION 205(6) of the CUSTOMS ACT
1901, provides as follows:
(6) 'Where a notice under Sub Section (2) is
served in respect of goods seized under Section 203, the goods shall be deemed to be condemned as forfeited to the Crown unless, within 30 days

after the day on which the notice was served, the owner of the goods or the person who had

possession, custody or control of the goods immediately before they were seized gives notice, in writing, to the appropriate person specified in the notice under Sub-Section (2) stating the Esic3 he claims the goods'.
In addition, SECTION 205(2)(d) provides that:
(2) 'Subject to this section, where goods are seized under Section 203, the responsible person shall, as soon as practicable, serve on the owner of the goods or the person who had possession, custody or control of goods
immediately before they were seized, either
personally or by post, a notice in writing - (d) specifying and setting out the address of an appropriate person and stating that any notice under Sub-Scction (6) is to be given to that person' .
In pursuance of the requirements of Section 205(2)(d) Customs Act 1901, you are hereby advised that:
'A notice under Section 205(6) of the Customs Act 1901 claiming the goods the subject of this notice shall be given to either the Commissioner or a Deputy Commissioner of the Australian Federal Police whose address is: G.P.O. BOX 401, CANBERRA, ACT, 2601."

Later on the same day, 8 March 1988, Detective Constable Tompsett handed the original notice to Mr Tomici at the Belconnen Remand Centre.
On or about 10 March 1988, Detective Constable Tompsett delivered a copy of the above notice to Esanda Ltd at Rudd Street, Canberra City. On 17 March 1988, the respondent received a letter dated 15 March 1988 from Esanda Finance Corporation Limited. The letter stated that the vehicle in question was under a consumer mortgage contract with Esanda Finance Corporation in the name of Bogdon Stancov and requested that, as the vehicle was the property

of that company, it be returned to the company. The
consumer mortgage contract is not in evidence. Nor is there any evidence before the Court as to the statement of account as between the applicant and Esanda Finance Corporation. The company did not seek representation in the present proceeding although given notice of it.

Under cover of a letter dated 21 March 1988 a copy

of the notice addressed to Mr Tomici was forwarded by

certified mail addressed to Mr Bogdan Stancov, c/- 5/83

Riverside Crescent, Dulwich Hill.

The covering letter was

in the following terms:

"I remind you of our conversation at the Cabramatta Police Station in January of this year concerning your motor vehicle, Holden Commodore Sedan, registered number OOE 709. As you are aware the Australian Federal Police were considering seizing the vehicle puruant Csic7 to the provisions of the Customs Act 1901.
This letter is to advise you that the vehicle has now been seized. A copy of the seizure notice is attached. This seizure notice explains the proceedure Csic7 you may take should you decide to take any action in relation to the matter."

The envelope and its contents were returned unclaimed on 3
May 1988.
Mr Christopher John Nightingale, a Senior
Investigator employed in the Australia Post Security
Investigations Service, in his affidavit sworn on 27 July

Mr Bogdan Stancov. Paragraph 5 of his affidavit reads: "5. On the front of the envelope in the top right hand corner is a postage paid imprint bearing the words 'POSTAGE PAID AUSTRALIA'. This indicates to me that the envelope was lodged at the counter of a Post Office or Mail Centre as part of a bulk lodgment. It further indicates to me that the postage due on the envelope was either paid for by cash, Bankcard, Mastercard, Visa Card or cheque at the time of lodgement or alternatively, was charged to a bulk postage account for subsequent payment when the account fell due."

1989, states that he has examined the envelope addressed to
Paragraphs 9, 10 and 11 of Mr Nightingale's affidavit read:
"9. From my experience, I can also say that, if the envelope had been lodged prior to 5pm at an official post office within Canberra in the Australian Capital Territory, the envelope, barring any unforeseen circumstances, would have arrived for delivery at Dulwich Hill Post Office in New South Wales the next working day. It would then have been delivered to the addressee that day if it had been an ordinary article in the post.
10. On the front of the envelope on the right-hand side are a number of notations in red and blue pen. From my experience, I can say that the red notation "C/L 24-3 CB" indicates to me that the article was received for delivery at Dulwich Hill Post Office on 24 March 1988. It also indicates to me that an 'undelivered postal article' card was prepared and left at the address on the envelope advising the addressee to collect the envelope from the Dulwich Hill Post Office. From my experience, I can say that this course was adopted because the envelope bears a 'Certified Mail' sticker and therefore must be signed for by the addressee or

his agent before delivery can be effected. The other two markings in
blue pen, '2nd 7/4' and 'F21/4', indicate to me that two further 'undelivered postal article' cards were prepared and delivered to the address on the envelope on 7 April 1988 and 21 April 1988 respectively.
11. From the rubber-stamp impressions referred to in paragraph 6 above and the date-stamp impression referred to in paragraph 7 above, I can say that the envelope was forwarded from Dulwich Hill Post Office on 28 April 1988 for return to the Australian Federal Police at the address indicated in the front top left-hand corner of the envelope."

Section 229 of the Act provides in sub-s.(1) that the goods identified in the various paragraphs of that sub-section "shall be forfeited to the Crown". The goods mentioned in par.(j) of that sub-section include any carriage used in the unlawful conveyance of any goods. "Carriage" is defined in sub-s.4(1) to include vehicles and conveyances of all kinds. The conveyance of goods is unlawful within the meanlng of the provision if the conveyance is a contravention of the Act: Forbes v. Traders' Finance Corporation Ltd (1971) 126 C.L.R. 429 at p. 439.
Section 203 provides in sub-s.(2) that an authorized person may seize any forfeited goods or any goods that he believes on reasonable grounds are forfeited goods. In that section "authorized person" includes an officer of police.
Sub-section 205(2) provides:

"(2) Subject to this section, where goods are seized under section 203, the responsible person shall, as soon as is practicable, serve on the owner of the goods or the person who had
possession, custody or control of the goods immediately before they were seized, either
personally or by post, a notice in writing -
(a) identifying the goods;

(b)

stating that the goods have been seized under section 203 and specifying the reason for the selzure;
(c) setting out the terms of the provisions

of sub-section (6); and

(d)

specifying, and setting out the address of, an appropriate person and stating that any notice under sub-section (6) is to be glven to that person."

So far as material for present purposes, the expression
"responsible person" is defined in sub-s.205(1) to mean, in
relation to narcotic-related goods, the member of the Australian Federal Police who seized the goods. The
expression "narcotic-related goods" includes vehicles that
are, or are believed by the person in possession of them to be, forfeited goods by reason of having been used in the unlawful conveyance of prohibited imports that are narcotic goods (sub-s.4(1)). "Owner" in respect of goods is defined In sub-s.4(1) to include any person (other than an officer of Customs) being or holding himself out to be the owner, importer, exporter, consignee, agent, or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods. The expression "appropriate person" is defined in sub-s.205(1) to mean, in relation to narcotic-related goods, the Commissioner of

expressions being themselves defined in sub-s.4(1). It is Police or a Deputy Commissioner of Police, the latter

clear that the reference to Police in this context is to the Bustrallan Federal Police. Sub-section 205(4) provides that a responsible person is not required to serve a notice under sub-s.(2) in relation to goods if, after maklng such
enquiries as he thinks appropriate, he does not have
sufficient information to enable him to serve the notice.

I
I

Sub-section 205(6) provides:
Where a notice under sub-section ( 2 ) is served in respect of goods seized under section 203, the goods shall be deemed to be condemned as forfeited to the Crown unless, wlthin 30 days after the day on which the notlce was served, the owner of the goods or the person who had possession, custody or control of the goods immediately before they were seized gives notice, in writing, to the appropriate person specified in the notice under sub-section ( 2 ) stating that he claims the goods."
" ( 6 )

Sub-section 205(8) provides:
"(8) Where a notice under sub-section ( 2 ) is served in respect of goods seized under section 203, the goods shall, for the purposes of this Act, be taken to be in the possession of the appropriate person specified in the notice."

Sub-sections 208A(1) and (2) provide:
"(1) Where notice under sub-section 205(6) is given in respect of any goods seized under section 203, the Collector or member of the Australian Federal Police who is in possession of the goods may -

(a)

retain possession of the goods without taking any proceedings for the condemnation of the goods; and

(b)

may serve on the person who gave that notice, either personally or by post, a notice in writing requiring him to bring an action against him within 4 months of the service of the notice for the recovery of the goods.
(2) Where -

(a)

a notice under paragraph (l)(b) in relation to goods is given; and

(b)

the person to whom the notice was given does not, within 4 months after the service of the notice, bring an action for the recovery of the goods,
Lhe goods shall be deemed to be condemned ds forfeited to the Crown without any further

proceedings. "

Although counsel for the respondent referred to the fact that Esanda Finance Corporation Limited claimed an interest in the vehicle, he presented no argument that the Court, if it concluded that no lawful seizure of the vehicle had been effected pursuant to the provisions of the Act, should find that the applicant was not the owner of the vehicle or the person entitled to its possession.
The case for the respondent - a case disputed by the applicant - is that the vehicle was seized by Detective Constable Tompsett under sub-s.203(2) of the Act on or about 8 March 1988 or more precisely between 2 and 8 March 1988. The difficulty which stands in the way of accepting the case for the respondent is that the evidence does not disclose that between those dates Detective Constable Tompsett took any action in relation to the vehicle which can properly be characterised as a seizure of it.

Earlier in these reasons I have set out the history of the matter in so far as it is established by the evidence. Although Detective Constable Tompsett has deposed that late in the evening of 20 December 1987 he formed the belief that the heroin found in the vehicle had been
conveyed in the vehicle from Sydney to Canberra, it is clear that no decision to seize the vehicle under sub-s.203(2) of
the Act was then made and no steps were taken at that time to effect such a seizure. On the evidence, the earliest date on which a decision was taken to seize the vehicle under that sub-section was 2 March 1988. That this was the position is reinforced by the statement made by Detective Constable Tompsett to the applicant on 12 January 1988 that he, Tompsett, proposed "to make an application to the authorities in Canberra to have your car forfeited to the Government", by the steps, recounted in par.54 of his affidavit sworn on 10 February 1989, that Detective Constable Tompsett took "requesting permission to issue a seizure notice in accordance with the provisions of that Act" and by the terms of the letter dated 21 March 1988 addressed to the applicant. It is somewhat curious that the request for permission and the endorsement made by Detective

Superintendent Worthy on 2 March 1988 giving permission were cast in terms of permission to issue a seizure notice rather than permission to effect a seizure of the vehicle. However, the latter must clearly have been intended for, if

a seizure had been effected, no permission "to issue a

obligation on "the responsible person" - an obligation

seizure notice" was necessary. There was a mandatory

arising under sub-s.205(2) - to serve such a notice unless

he was excused from doing so by the terms of sub-s.205(4).

The only relevant action which, on the evidence, Detective Constable Tompsett took after receiving the minute endorsed on the papers by Detective Superintendent Worthy was to prepare and sign the notice of seizure addressed to

Mr Tomici (the terms of which are referred to above) and to
serve that document on Mr Tomici at the Belconnen Remand
Centre. That was not an act of seizure. As Jackson J. pointed out in O'Neill v. Wratten (1986) 11 F.C.R. 404 at

pp.410-1, the terms of sub-s.205(2) of the. Act indicate

clearly that "seizure" does not occur by service of the

notice of seizure but is an event which must have already taken place before the notice is served even though in certain cases the time elapsing between the act of seizure and the service of the notice of seizure may be brief. It is also to be noted that the notice of seizure states that

the vehicle was seized in accordance with the powers conferred by s.203 of the Act on 8 March 1988 at a particular motel in the Australian Capital Territory. That statement is plainly incorrect.

For the respondent it was submitted that, as the vehicle was already in the custody of the Australian Federal Police, it having been detained on 20 December 1987 for the purposes of scientific examination in connection with the

proposed prosecution proceedings, no action was necessary on the part of Detective Constable Tompsett to effect a seizure

of the vehicle under the Act once the decision to seize had

been taken. It was submitted that the mere making of the decision to seize the vehicle under sub-s.203(2) of the Act was sufficient to alter the character in which the vehicle was held by the Australian Federal Police from custody for the purposes of the proceedings to possession under and in consequence of the relevant provisions of the Act. I am unable to accept these submissions. The relevant provisions of the Act clearly require that, in order that goods may be retained as against the owner or the person then entitled to possession of them, some action be taken in relation to the

goods which amounts, in law, to a seizure of the goods.

Support for this view is to be found in the decision of the

Full Court of Western Australia in Scott v.

C19887

W.A.R. 377 at. pp.385-8 although the Court was there dealing

with different statutory provisions.

The respondent has, therefore, failed to establish that the vehicle was seized on 8 March 1988 or on any date between 2 and 8 March 1988 as alleged. It follows that he has failed to make good his assertion that he has a right to possession of the vehicle as against the applicant.

Even if I be wrong in that conclusion, other difficulties stand in the way of accepting the respondent's assertion that he is entitled to retain possession of the vehicle. On the assumption that a seizure of the vehicle

under sub-s.203(2) took place, as the notice of seizure

states, on 8 March 1988, Detective Constable Tompsett, as

the responsible person, became obliged, by the provisions of sub-s.205(2), to serve on the owner of the vehicle or the person who had possession, custody or control of the vehicle immediately before it was seized, either personally or by post, a notice in writing specifying the matters referred to in that sub-section and to do so "as soon as is practicable" following the act of seizure. It may at once be said that

there is no suggestion that Detective Constable Tompsett was

excused by sub-s.205(4) from complying with that obligation.

The respondent submits that this obligation was fulfilled by the service on Mr Tomici on 8 March 1988 of the notice of seizure the text of which is set out above. In my opinion, this submission must be rejected for the simple reason that Mr Tomici was neither the owner of the vehicle nor the person who had possession, custody or control of the vehicle immediately before the assumed seizure on 8 March 1988. Mr Tomici, as Detective Constable Tompsett well knew, had ceased to have any association with the vehicle on 20 December 1987.

The respondent submits, in the alternative, that the obligation arising under sub-s.205(2) was fulfilled when a copy of the notice addressed to Mr Tomici was forwarded to the applicant by certified mail under cover of the letter dated 21 March 1988. This submission must, in my opinion, also be rejected for a number of reasons. In the first

place, the notice forwarded under cover of.that letter is

defective in significant respects. It is not addressed to

the applicant and it gives incorrect information as to the place of seizure of the vehicle. It must also be doubted whether the notice adequately specifies the reason for the seizure as required by par.(b) of sub-s.205(2): see Powers v. Maher (1959) 103 C.L.R. 478 per Kitto J. at pp.479-480.

Secondly, it has not been shown that the notice was forwarded to the applicant as soon as practicable after the

22.

. * .

L . -
assumed seizure on 8 March 1988. No explanation for the delay has been advanced. Thirdly, and more importantly, the

!
I

letter and the copy notice did not come to the notice of the
applicant but were returned to the sender unclaimed.

I I

In relation to the question of service on the
applicant, counsel for the respondent relies on 5.29 of the
Acts Interpretation Act 1901 (Cth) and s.208C of the Customs

Act. Section 29 of the Acts Interpretation Act provides:

"Where an Act authorizes or requires any document to be served by post, whether the expression 'serve' or the expression 'give' or 'sent' or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Section 208C of the Customs Act provides:

"For the purposes of the application of section 29 of the Acts ~nterpretatibi ~ c t 1901 to

the service by post of a notice under sub-section - -
205(2) or paragraph 208A(l)(b) on a person. such . -
a notice posted as a letter addreLsed to that person at the last address of that person known to the sender shall be deemed to be properly addressed."

The applicant concedes that the envelope in which the letter and copy notice were contained was addressed to him at his address last known to Detective Constable Tompsett. It appears, however, that, between 12 January

1988 when the applicant gave that address to Detective Constable Tompsett and 21 March 1988, the applicant had

moved to another address in Dulwich Hill.

Act operates, in the circumstances prescribed, to deem The first limb of s.29 of the Acts Interpretation

service of a document to be effected. The section envisages

that the method of posting employed will be such as to

result, in the ordinary course of events, in the letter being delivered to the address shown on the envelope. Thus, the second limb of the section fastens upon the date at which the letter would be delivered in the ordinary course of post. In the present case the letter and copy notice were forwarded by a method of posting under which they would not be delivered to the address shown on the envelope but would be retained for collection at the Dulwich Hill Post Office and the addressee so advised by the delivery of a card to the nominated address. It may be doubted, therefore, whether s.29 has any application to the circumstances of this case. Further, the evidence given by

Mr Nightingale (see par.5 of his affidavit sworn on 27 July

1989) suggests that the requirement of prepayment may not

have been met in this case.

But, even if s.29 can be relied upon to deem service of the notice to have been effected, a further difficulty confronts the respondent. The operation of sub-s.205(6) depends not only on showing that a notice under sub-s.205(2) was served in respect of goods seized under

5.203 but also upon showing "the day on which the notice was

served" for it is from that day that the period of 30 days referred to in the sub-section is to be calculated. The second limb of 5.29 of the Acts Interpretation Act deeming service to have been effected at the time at which the letter would be delivered in the ordinary course of post only operates "unless the contrary is proved". The evidence clearly establishes that the envelope and its contents were not received by the applicant and, indeed, that the envelope was not, in fact, delivered to the address which it bore. Thus, the respondent has failed to establish the date of service of the notice.

There is a further matter to which I should advert, this being the matter that was not canvassed during the hearing and to which the written submissions referred to earlier in these reasons relate. The respondent's case rests on the proposition that 5.203 of the Act conferred a power to seize the vehicle in question. That section authorizes the seizure of any goods that an authorized

Paragraph (j) of sub-s.229(1) relevantly provides that a

person believes on reasonable grounds are forfeited goods.

carriage used in the unlawful conveyance of any goods shall be forfeited to the Crown. In this case the alleged seizure of the vehicle depended upon the belief formed by Detective Constable Tompsett on reasonable grounds that the vehicle had been used in the unlawful conveyance of a quantity of heroin, a prohibited import. As has already been mentioned, the conveyance of qoods is unlawful for the purposes of sub-s.229(l)(j) if the conveyance is a contravention of the

Act. Sub-section 233(1) provides, inter U, that a person shall not unlawfully convey prohibited imports and sub-s.233(2) provides that it is not lawful for any person to convey without reasonable excuse (proof whereof is to lie upon him) any prohibited imports. Since the amendments made to the Act by the Customs Act (No.2) 1971 (Cth), however, s.233 does not apply to, or in relation to, narcotic goods (sub-s.233(5)). Heroin, with which this case is concerned, is a substance the name of which is specified in column 1 of Schedule V1 to the Act and, hence, falls within the definition of "narcotic goods" in sub-s.4(1). Section 233B, which makes special provision with respect to narcotic goods, contains no provision proscribing the act of conveying prohibited imports being narcotic goods.

To establish that the conveyance of the heroin from Sydney to Canberra was unlawful, the respondent relies upon 5.30 and sub-s.33(1) of the Act. Section 30, so far as material, provides:

"30. Goods shall be subject to the control of the Customs as follows:

(a) As to a11 goods imported - from the time of importation until the goods are dealt with -
(i) in accordance with an entry of the goods for home consumption;
(ii) by virtue of an approval under section 71A;

(iii) by virtue of permission given under section 71B; or
(iv) by virtue of permission given under section 162A,

or until exportation to parts beyond the
seas whichever shall first happen.

Sections 71A and 71B enable approval to be given for the delivery of certain goods for home consumption without entry and s.162A enables certain goods to be brought into Australia on a temporary basis without payment of duty.
Sub-section 33(1) provides:
"33. (1) Except as authorized by this Act, a person shall not move, alter or interfere with goods that are subject to the control of the Customs.
Penalty: $50,000."

It was submitted that all heroin imported into Australia becomes subject to the control of the Customs from the time of importation and that, unless dealt with in accordance with reg.5 of the Customs (Prohibited Imports)

Regulations - that regulation dealing with the importation of drugs as defined - it remains subject to that control without

limitation as to time, so that any person who at any time moves, alters or interferes with a quantity of heroin which has not been so dealt with commits an offence against sub-s.33(1) of the Act. To convey from Sydney to Canberra the heroin found in the motor vehicle here in question constituted, so it was submitted, the moving of goods subject to the control of the Customs contrary to the provisions of sub-s.33(1). Detective

Constable Tompsett was justified, so it was submitted, in

believing that the heroin had not been dealt with in accordance with reg.5 of the Customs (Prohibited Imports) Regulations and the conveyance of the heroin was, therefore, unlawful.

The history of ss.233 and 2339 up to the time relevant to the decision was referred to by Mason J. (as he then was) in Beckwith v. The Oueen (1976) 135 C.L.R. 569 at pp.578-582. As his Honour there pointed out, prior to the amendments made by

the Customs Act (No.2) 1971 (Cth), sub-s.233(2) operated to make unlawful the conveyance, without reasonable excuse, of all prohibited imports including those to which s.233B applied. In that situation there was no necessity to seek to rely on ss.30 and 33 to supply the character of unlawfulness to the conveyance of prohibited imports being narcotic goods. Sections 233 and 233B have been amended since the amendments made by the Act of 1971 but not in any respect relevant to the question now being considered.

Sections 30 and 33 are provisions within Part I11 of the Act which is headed "Customs Control Ekamination Entries and Securities Generally". They are provisions the primary purpose of which, is to facilitate Customs administration. As Griffith C.J. said in The Kinq v. Sutton (1908) 5 C.L.R. 789 at p.798:

"The Customs Authorities are not bound to accept the assertions of the importer as to the character of the goods imported, of which the importation may be altogether prohibited. The nature of the case renders it necessary - as has always been done in practice - that imported goods should be retained under the control of the Customs for a sufficient time to discover (1) whether they may be lawfully imported, and (2) whether they are dutiable, and if so at what

rate. "
Section 33 may clearly apply in factual situations similar to those the subject of Owens v. Collector of Customs for the State of New South Wales (1940) 40 S.R. (N.S.W.) 605 and

Little's Victorv Cab Co. Pt? Ltd v. Carroll E19483 V.L.R. 249
but nothing in those cases supports the proposition that the section has the very broad operation for which the respondent contends. Whether it applies in the circumstances of this case to render unlawful the conveyance of the heroin from Sydney to Canberra must be doubted. However, in view of the conclusions I have reached on the other aspects of the case referred to earlier in these reasons, I do not find it necessary to express a definitive opinion on the point. That is best left to a case in which the question necessarily arises. Before that necessity rises, however, the question might engage the attention of the Parliament.

It follows from what is said earlier in these reasons that s.203 of the Act provided no foundation for the seizure of the motor vehicle in question. The applicant is, therefore, entitled to an order that it be returned to him in good order and condition.
Before parting with the case, I should say that no
objection was raised to the jurisdiction of the Court to
I
I
!entertain this proceeding or to the power of the Court to make
,the orders sought by the applicant.
l
In the result, I order that the respondent, within 21

I
days from the date of this order, deliver to the applicant in
,good order and condition Holden Commodore motor vehicle
[registration number (N.S.W. ) 00E-709. I further order that the
I
respondent pay the applicant's costs of the application.
I certify that this and
the preceding 28 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves.

d Associate 2

Dated: 29 June 1990

Counsel for the applicant : Mr R.C. Refshauge

Solicitors for the applicant : Macphillamy Cummins
& Gibson

Counsel for the respondent : Mr A.R. Hicks
Solicitor for the respondent : Director of Public
Prosecutions

Date of hearing : 10 October 1989
Date of judgment : 29 June 1990

AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G 55 of 1988
DISTRICT REGISTRY	) )
GENERAL DIVISION	1

JUDGE MAKING ORDER	: Neaves J.
DATE OF ORDER	: 29 June 1990
-E MADE	: Canberra
THE COURT ORDERS THAT:

1.	The respondent, within 21 days from the date of this order, deliver to the applicant in good order	and condition Holden Commodore motor vehicle	registration number (N.S.W.) 00E-709.
2.	The respondent pay the applicant's costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G 55 of 1988
DISTRICT REGISTRY	1
)
GENERAL DIVISION	)

used by TOMICI and others to transport heroin	"18. As the vehicle in question was knowingly
from Sydney to the A.C.T. and as there is some suspicion relating to STANCOV's knowledge of this, I request permission to issue a seizure notice in accordance with the Customs Act 1901.
19. Forwarded for your information."

space the name "Mr Joan Tomici" had been inserted, his address being shown as c/- Belconnen Remand Centre. Rae	Street, Belconnen, A.C.T.	The body of the document was in
the following terms:

after the day on which the notice was served,	the owner of the goods or the person who had
possession, custody or control of the goods immediately before they were seized gives notice, in writing, to the appropriate person specified in the notice under Sub-Section (2) stating the Esic3 he claims the goods'.

expressions being themselves defined in sub-s.4(1). It is	Police or a Deputy Commissioner of Police, the latter
clear that the reference to Police in this context is to the Bustrallan Federal Police. Sub-section 205(4) provides that a responsible person is not required to serve a notice under sub-s.(2) in relation to goods if, after maklng such
enquiries as he thinks appropriate, he does not have
sufficient information to enable him to serve the notice.

(a)	retain possession of the goods without taking any proceedings for the condemnation of the goods; and
(b)	may serve on the person who gave that notice, either personally or by post, a notice in writing requiring him to bring an action against him within 4 months of the service of the notice for the recovery of the goods.

(a)	a notice under paragraph (l)(b) in relation to goods is given; and
(b)	the person to whom the notice was given does not, within 4 months after the service of the notice, bring an action for the recovery of the goods,

"For the purposes of the application of section 29 of the Acts ~nterpretatibi	~ c t	1901 to
the service by post of a notice under sub-section	- -

Counsel for the respondent	: Mr A.R. Hicks
Solicitor for the respondent	: Director of Public

Date of hearing	: 10 October 1989
Date of judgment	: 29 June 1990

[1990] FCA 326

29 Jun 1990