Forbes, Collector of Customs (NSW) v Traders Finance Corporation Ltd

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