West v. Australian Customs and Border Protection Service

[2013] QDC 18

[2013] QDC 18

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE RACKEMANN

No 2152 of 2012

TREVOR ROY WEST	Appellant
and
AUSTRALIAN CUSTOMS & BORDER PROTECTION SERVICE	Respondent

BRISBANE

..DATE 01/02/2013

ORDER

HIS HONOUR:  This is an appeal by someone who was the unsuccessful respondent to proceedings in the Magistrates Court in which the Chief Executive Officer of Customs sought declarations that certain knives imported by Mr West are "special forfeited goods" under Regulation 4 of the Customs (Prohibited Imports) Regulations 1956 which prohibit the importation into Australia of goods specified in Schedule 2, unless the permission in writing of the Minister or authorised person to the importation has been granted. 

Item 19 of Schedule 2 relates to flick knives or similar devices, and is the relevant item for the purposes of these proceedings.  It was common ground that Mr West imported the knives and did not have permission to do so.  The question is whether the knives fell within item 19 of Schedule 2. 

That item describes goods as follows:  "Flick knives or similar devices made by any material that have a blade, fold or recessed into the handle which opens automatically by; (a) gravity or centrifugal force; or (b) pressure applied to a button, spring or device in or attached to the handle of the device."

It is common ground that sub-paragraph (b) of the definition does not apply.  It is also common ground that the knives in question have a blade which is folded or recessed into the handle.  The only question both before the learned Magistrate and before this Court is whether the blade of the relevant knives opens automatically by centrifugal force. 

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HIS HONOUR:  It is common ground that the blade would emerge from the knives if there was a sufficient force applied by a circular motion by, for example, someone's upper limb and wrist. The question, therefore, was whether this is appropriately described as the blade opening automatically by centrifugal force. 

The learned Magistrate had the benefit of expert opinion evidence from Dr Thomas Stace.  He holds a Bachelor of Science with First Class Honours in Physics and Mathematics from the University of Western Australia, a Bachelor of Mechanical Engineering with First Class Honours from the University of Western Australia, a PhD in Physics from the University of Cambridge.  He has been employed as an academic physicist firstly at the University of Cambridge and currently at the University of Queensland where he is a Research Fellow and Senior Lecturer.  His areas of research include quantum mechanics, solid mechanics and fluid mechanics.

His report explained what he understood the term "centrifugal force" to be in a technical sense, and expressed an opinion that the opening of the blade by the rotation of forearm and wrist away from the body was appropriately described as an opening by centrifugal force.

The learned Magistrate not only accepted his evidence but also had regard to the commonly understood meaning of the term as per the dictionary definition, which is, "an apparent force that acts outwards on a body moving about a centre."  In short, consistently with his Honour's findings, the blade of each of these knives, when subjected to the type of movement discussed, is opened by centrifugal force, whether that term is regarded as being a term of ordinary meaning or as having the technical meaning attributed to it by Dr Stace.

The appellant focuses upon the description of centrifugal force as an "apparent force".  He says that the expression "centrifugal force" is really "common sense physics," or to use another expression, "junk science".  He points out that it is not an actual force; rather it is what he would describe as a misnomer used to describe circumstances in which other things are in fact in play.

In this case he says that under the conditions referred to, the blade actually opens by reason of inertia and centripetal force.  I am not at all sure that he and Dr Stace are very far apart. In his evidence-in-chief and in his report,  Dr Stace referred to centrifugal force as sometimes being referred to as a fictional force.  He explained that it is so referred to because, "It's a force that occurs only in certain reference frames."

He gave the example of a lady holding a bag in a car going around a corner.  To an observer on the side of the road what is causing the bag to move in an arc around the curve is centripetal force, but from the perspective of someone who is within the vehicle they perceive that there is a force, called centrifugal force, which, from their frame of reference, appears to be pushing the bag outwards.  In this sense it is a force that only appears in certain reference frames.  It is used to describe a motion with respect to those particular reference frames, as opposed to centripetal force which is present in all reference frames.

In cross-examination it was suggested to Dr Stace that it was mostly, if not all, centripetal force of the human upper arm, and centripetal force exerted by the axis pivot pin at the end of the blade when it starts its emergence which is at play.  He responded:  "As I've already said already, centripetal force is - is always a relevant force to talk about in any inertial frame.  It's a thing that causes the acceleration towards the centre of rotation...In a rotating reference frame one needs to introduce a concept called a centrifugal force that accounts for the perceived force..."

The appellant contended that as an apparent or perceived force, centrifugal force it is not something which is in fact acting upon the blade of the knife at all; that what is in fact operating on the blade of the knife are the other factors referred to by him.  He was highly critical of those scientists who use the concept of centrifugal force.

It must be remembered that what we are ultimately dealing with, in the legal context, is the interpretation of the regulation, and, in that regard, a search for the meaning of the words that have been used.  A difficulty with the appellant's position is that he would have the Court interpret the section as if the reference to centrifugal force was something of a nonsense and certainly, as he conceded in his oral submissions, on his approach, the blade of a knife could never be said to open by centrifugal force.  That is an unlikely construction.

It is unnecessary ultimately to determine whether the concept of centrifugal force is indeed valid or invalid from a purely scientific perspective.  It seems to me to be tolerably clear, as a matter of interpretation, that the expression used in the regulation should be given the meaning which is attributed to it in the dictionary definition or indeed by Dr Stace, as the learned Magistrate accepted.

What the regulation is referring to is a knife or similar device that has a blade which opens by a process which is known as centrifugal force.  That is apt to describe the knives in question.  In my view the learned Magistrate was not only justified, but correct in concluding that the views expressed by Dr Stace support the natural meaning of the words and that the blades of the knives in question open in the way referred to in sub-paragraph (a) of item 19.

Late in the appeal, indeed after I had started dictating these reasons, the appellant raised a dispute about whether, even that was so, it could be said that the blades open "automatically", given the level of human intervention which is required in order to produce the movement which causes the blade to open.

It was pointed out that the ordinary meaning of the word "automatic" refers to, "Working by itself, without direct human intervention." The respondent on the other hand referred to the decisions in Re ACI Australia Limited v. Collector of Customs Victoria [1984] 7 ALD 234 at 242, and Re Repco Limited [1986] 10 ALD 241 at 247, for the proposition that an apparatus does not cease to be automatic simply because it requires some level of human intervention to bring its automatic functions into operation.

In the case of item 19 it seems to me that what is being referred to is a blade which opens automatically once a particular force is applied to it.  In this case the only human action is that which leads to the force referred to in subparagraph (a).  Once that force comes to bear, the blade opens of itself without further human intervention.  In my view that comes within the expression "opens automatically" for the purposes of item 19 of the Schedule 2 to the Regulations. 

Accordingly, the appeal is dismissed.

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HIS HONOUR:  Order as per draft, initialled by me and placed with the papers.

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