Lyons v Smart [1908] HCA 34

Lyons v Smart [1908] HCA 34 - HCA 1908 case summary — Zoe

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manufactured or produced wholly or in part by prison labour or which have been made within or in connection with any prison, gaol, or penitentiary." I remark as to the first class that it might be very hard to know whether the permission of the pro- prietor of the copyright had been obtained. As to the second, the money might or might not appear on its face to be prohibited

in the case of a light sovereign the victim might not know that it was light. In the case of blasphemous articles they might be such that their character might not be apparent on their face. Indeed I take it that there are as many opinions as to what is blasphemous as there are men - quot homines tot sententiv. As to goods manufactured by prison labour, they do not bear on their face any distinct mark to show whether they come under that description or not. The fifth class is "exhausted tea, and tea adulterated with spurious leaf or with exhausted leaves, or being unfit for human use, or unwholesome." According to the con- struction contended for on behalf of the respondent, any vietim who buys exhausted tea is liable to a penalty of £100. The sixth class is "oleomargarine butterine or any similar substitute for butter unless coloured and branded as prescribed." The seventh is "all goods the importation of which may be prohibited by proclamation." The eighth is "all goods having thereon or there- with any false suggestion of any warranty guarantee or concern in the production or quality thereof by any persons public officials Government or country." And the ninth is "mineral oil and mineral spirits unless imported under and subject to such restric- tions as may be declared by proclamation." By see. 50 it is enacted that "no prohibited imports shall be imported," with a penalty of £100. Now, having regard to some of the things mentioned in sec. 52, it would seem to be improbable on the face of it that the legislature should say that any person who should -have in his possession any of these goods at any period after their importation should be liable to a penalty of £100. They are things which might have come into his possession innocently, without any knowledge that there was a contravention of the law, and therefore it is improbable that the legislature would have passed such an Act. It is something like the legislature enacting

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The first question which suggests itself from this point of view is whether sec. 233 is directed to acts done at the time of, or in connection with, the operation of the bringing in, or whether it applies also to goods which, after the operation of bringing in is concluded, come into the possession of any person, whether he himself was or was not concerned in the operation. In the first view the words " being" or "in course of being" would be read as inserted before the words "unlawfully imported." In the second view the words " which have been" would ke so read. In support of the first view it may be pointed out that, in the case of goods unlawfully exported, that is the only construction which will make the words applicable to any possible state of facts. This is almost, if not quite, as clear in the case of goods unlaw- fully conveyed. It is not so obvious in the case of smuggled goods. In the second view the word "unlawfully" means " knowing that the goods would not have come into his possession unless some other person had contravened the Act," that is to say, "unlawfully " means " knowingly " simpliciter. Iam not aware of any instance where the word "unlawfully" has been so con- strued, except where the thing or act referred to is in its nature wrong, or is positively wicked, or prohibited by some positive law. So construed, the section would apply to the case of any goods as to which the man who has them in his possession receives the information that they have been unlawfully imported. He may have acquired possession of the goods in perfect innocence. He is at least entitled to inquire whether the information is true. How long a time is to be allowed him to verify the statement ? If he finds it is true, what is he to do with the goods? They are liable to forfeiture. Is he to inform the Customs authorities, and offer to give them up? But that would not save him, for, ex hypothesi, his possession of the goods has become unlawful. The goods may be light sovereigns which he received in ordinary business, or foreign prison made furniture which he has bought in ordinary trade, or goods which have in fact been landed elsewhere than at a wharf and on which Customs duties have

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prison-made furniture - things which are not ew facie illicit, such as are dies for printing postage stamps, the unauthorized posses- sion of which is absolutely prohibited by the Postal Acts. But, it is said, there is a distinction between goods which are ex facie illicit, like the articles in question in this case, and other goods. This argument seems to me to involve a double fallacy ; first, that the same words in a general enactment may have different meanings according to the subject matter to which they are sought to be applied, and, secondly, that the word "unlaw- fully" in see. 233 sometimes means wrongly in the sense of a contravention of generally accepted notions of right and wrong, and sometimes means in contravention of the provisions of the Act. The Customs Act has nothing to say to things mala in se, It imposes arbitrary rules which must not be contravened. The only test of right or wrong is whether there has been a contravention of those rules. All goods unlawfully imported are placed on the same footing whatever the previous contravention may have been. Aceording to this construction the words "unlawfully have in his possession" would, as desired, bear one or other of the following meanings : - As to some goods, "have in his possession knowing at the time of acquisition that the goods have been imported in contravention of the law"; as to others, including some or all prohibited goods, "have in his possession knowing at any time after acquisition that the goods have been unlawfully imported"; as to others, "have in his possession with that knowledge and knowing further that the goods are such that no one should have them in his possession." I am unable, without disregarding ordinary canons of construction, to find any warrant for so expanding and construing the simple phrase used in sec. 233. Such a construction is really founded upon conjecture, more or less plausible, but itself founded upon -an @ priori assumption of what the legislature must have intended, which is worse than conjecture. The steps in this argument are these: - First, this is an act which ought to be prohibited. Secondly, the legislature must have. intended to punish it. Thirdly, they must have done so. All that remains

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have found, apart from sec. 233, are in sec. 66 which requires possession of dutiable goods, derelict, flotsam, jetsam, lagan or wreck to be delivered to an officer without delay - under the penalty of £20; sec. 159 which relates to blank or partly blank invoices ; sec. 207 enabling the Collector to retain possession of goods seized ; sec. 229 (q) forfeiting dutiable goods found in the possession of a person landing from a vessel, and who had either denied or not fully disclosed the possession of the goods. Of these only see. 66 would answer the appellant's test, and that on his argument must be excluded from sec. 233 because it affixes its own penalty, £20; but all the quoted sections together would offer a most inadequate reason for the enactment of the offence. The possession after importation of any goods whatever - except the insignificant case of sec. 66 - and whether prohibited goods or otherwise, with the fullest knowledge of the most flagrant breach of the law committed by or during importation, would be untouched by the Act. The appellant's argument necessarily goes so far as to leave possession innocent notwithstanding thorough knowledge at the time of acquisition that the goods were illegally imported. Nowhere in the Act is acquisition of prohibited goods after notice of illegality expressly made unlawful any more than subsequent possession after notice of illegality. If one is lawful so is the other. The goods are for- feited it is true, and may be seized if found, but a person receiving them in the way described, may conceal them with impunity and so prevent a seizure, though he may not destroy them under a penalty of 5 years' imprisonment with hard labour (sec. 232) ; that is, in the appellant's view, imprisonment for destroying goods of which he is in lawful possession. If his possession is not unlawful before seizure no penalty can reach him, for the Act says nothing specifically about concealment. He may pass the goods on at a profit, either by exporting them or shouldering all risk on to an innocent person who loses the goods, while he himself escapes all loss and penal visitation. The goods may be still according to the Act subject to the control of the Customs, and by law should be in possession of the Customs, the duties may not have been paid, no entry made, the goods may have

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section to be convicted of felony. Mr. Justice (now Lord) Collins asked (1): - "In that case would there not be a difference in his position before and after he discovered that the stamp was fictitious?" I would here observe that the learned Judge saw no difficulty in the possessor getting rid of the article in some way. I cite from the judgment of the same learned Judge who speaking of possession said (2) : - " It seems to me that there, again, that must be a conscious act, and that what is struck at is a person having a fictitious stamp consciously in his possession, and therefore being obliged to defend that possession by making an excuse. In my judgment, it is unnecessary to deal with the very refined and ingenious argument for the respondent on this point, because as a practical matter I think it would be impossible to divide the innocent from the culpable part of the act of a person who is challenged with being in possession of a fictitious stamp. It would not be ad vem for him to say, 'I can explain how I came to get possession of it, unless he was prepared to defend the retaining possession of it ; and the moment the legis- lature or the proper authority had intervened, he would be called upon to hand it back under the later paragraph of the section." Later on the learned Judge repeats his statement that, how- ever innocent the original possession was, it would cease to be innocent the moment his attention was called to it by the Execu- tive asking him to give it up. Of course, if before the Executive called his attention to it someone else did so, his knowledge, however acquired, would terminate his innocence, and he would therefore be holding pos- session in contravention of the Act. There was no power to seize and no forfeiture by that Statute except for an act which already subjected the defendant to a personal penalty. Granthum J. said he might have been liable under another part of the section, but Collins J. did not say so; and as importing was not made an offence by the Act, there was apparently nothing in the facts but possession without lawful excuse which could affect the defend- ant. The charge was for having possession as here, so the Court treated it, and allowed the appeal, though up to the time of the

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of the Act deals with the importation of goods, and prescribes how they shall be imported. For instance, under sec. 74, no goods are to be unshipped except as prescribed, or with a Collector's permit, or after entry passed. But the penalty affixed by sec. 74 seems to be applicable only to the persons who unship - to the persons who have control of the boat or vessel, and who have to land the goods (see sec. 5); und therefore sec. 233 takes up the subject, and applies a penalty also to the man who imports in contravention of the section. The mode of importation is con- demned. It is not "due importation" (sec. 49); and sec. 233 is meant to ensure that not only the unshippers, but the importers, are to be punished. Then Part VI. deals with the exportation of goods, and prescribes how they shall be exported. For instance, under sec. 114, before any goods are taken on board a ship for export, the ship must be entered outwards, and the goods must be entered for export. Exportation without these precautions is forbidden, is unlawful. But there is no penalty affixed for the contravention of this section, and no person is definitely pointed at as responsible for adopting this unlawful mode of exportation ; and therefore sec. 233 makes the contravention of the section an offence on the part of the man who exports in the manner con- demned by see. 114, As for "unlawfully convey," both in Part IV. and in Part VI. there are restrictions imposed as to the mode of conveying goods from ships for import, and to ships for export. For instance, under sec. 75, all goods unshipped have to be landed directly at a wharf, or be conveyed thereto in a licensed lighter &e.; and under see. 115 goods for exportation must be shipped directly at 1 wharf or be conveyed to the ship in a licensed lighter &. There is in each case a penalty affixed; but it is applicable only to the man who lands or to the man who ships contrary to the section - that is to say, it seems to be applicable only to those who have to land the goods or to ship the goods. Then sec. 233 comes in, and makes it an offence on the part of the person who conveys, as well as on the part of the person landing or the person shipping, if the goods be conveyed in the manner forbidden by the section, The mode of conveyance is forbidden, is unlawful. The application of the sec. 233 is, there-

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fore, perfectly clear so far, if we take it as creating a new offence as to smuggling, and as to the rest of the section, as making an act, which has already been treated as an offence on the part of A, an offence also on the part of B. But what shall we say as to the words "unlawfully . . . have in possession any goods"? They must be read in the same light as " unlawfully import" or "unlawfully export," or " unlawfully convey"; that is to say, we must find something in the rest of the Act or elsewhere which makes possession of goods unlawful. If there is nothing in the rest of the Act or elsewhere to make possession of goods unlaw- ful, the result is that, under the Act as it stands, there is no offence in mere possession, for there is certainly nothing in this section making mere possession unlawful. If no other section declares possession to be unlawful, this section does not do so; it assumes that the unlawfulness is determined aliwnde. We have no right to find that possession of any goods is unlawful unless Parliament says that it is unlawful. As Stephen J. said in R. v. Price (1), "the great leading rule of criminal law is that nothing, is a erime unless it is plainly forbidden by law." In my opinion, it is not necessary for the appellant to point out in the Act any provision to which the phrase "unlawfully have in possession any goods" can refer if it does not refer to possession under the circumstances of this case, It is sufficient if the defendant can show that his possession is not made unlawful by this or any Act. But the argument that the phrase is not otherwise applicable to anything in the Act is an argument of much force, though not conclusive. It would be a strong argument if we had to construe language which is ambiguous. However, it is not at all clear that the phrase can- not be applied (inter alia) to a master or owner who does not place the goods mentioned in sec. 76 in a place of security approved by the Collector, but keeps possession of them ; or to an owner who does not warehouse the goods mentioned in see. 116, but keeps possession of them. He has the goods in his pos- session, and unlawfully. But whether the phrase can be so applied or not, we come back, finally, to the fundamental ques- tion - where is there anything making the possession of unlaw- (1) 12 Q.B.D., 247, at p. 256.

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