Murphy v Farmer

Part IV of the Act is concerned with the importation of goods and Div. 4 is headed "The Entry, Unshipment, Landing, and Examination of Goods". It is unnecessary to consider the circumstances in which an entry, invoice, declaration, answer, statement or representation may be made in connexion with the importation of goods for it was accepted by the respondent that the answers provided by him to a customs officer in connexion with the importation of a Porsche motor vehicle from New Zealand fell within par. (i).

The appellant, who is the Collector of Customs for New South Wales, contended in the Supreme Court of New South Wales that three answers given by the respondent in Form G142 headed "Statement for Vehicle Imported by a Passenger" were false or wilfully misleading. Yeldham J. concluded that two of the answers were neither false nor wilfully misleading and there was no challenge to that finding. To the third question "Did you or your husband or wife, as appropriate, import a vehicle into Australia within the past three years?", the respondent answered "No". That answer was wrong but Yeldham J. held in these terms:

The evidence in the present case does not establish that the [respondent] made a deliberately or intentionally false statement when he erroneously answered the third question in Form G142 in the negative on 15th May, 1984.

Yeldham J. held that the answer given by the respondent was not wilfully misleading and that it was not false in the sense of intentionally untrue, which was the meaning his Honour attributed to the word in par. (i). His Honour therefore granted the respondent a declaration, in proceedings brought under s. 208A(3)(b) of the Act, that the motor vehicle had not been forfeited to the Crown [23] . On appeal, that decision was upheld by the Court of Appeal. Priestley J.A., with whom Hope and Samuels JJ.A. agreed, considered that "wilfully false" supplied "the most appropriate meaning for the word in its setting in the Act" [1] .

1. (1986) 5 N.S.W.L.R. 397. 2. (1987) 87 F.L.R. 149; 72 A.L.R. 691.

It may be accepted that "false" is not a precise adjective. Nevertheless, it is significant that The Shorter Oxford English Dictionary, 3rd ed. (1974), vol. 1, p. 722 gives as the word's primary meaning: "1. Erroneous. 2. Not according to rule, principle, or law; wrong ME. 3. Incorrect; unfair ME. 4. Defective 1523." The notion of purposely untrue or deceitful appears as a secondary meaning.

But the question is not to be answered simply as a matter of etymology. The juxtaposition of "false or wilfully misleading" and the absence of any qualifying adjective for the former is a strong argument for the proposition that false means no more than erroneous in fact. The purpose of the forfeiture provisions in the Act is well recognized: " in the history of English and Australian Customs legislation forfeiture provisions are common, drastic and far-reaching 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": Dixon C.J. in Burton v. Honan [2] . That purpose is, no doubt, more readily achieved by providing that an answer that is objectively untrue attracts the forfeiture provisions rather than by requiring an intentional untruth, the proof of which may be very difficult. By contrast, the term "misleading" is more elusive. An answer may be misleading by reason of circumstances beyond the appreciation of the person furnishing the answer. In that situation it is understandable that even the strict and complete observance of the Act should not lead to forfeiture unless an answer is wilfully misleading.

Such an approach has been taken by the courts in regard to par. (j) of s. 229(1) which forfeits to the Crown:

Any carriage or animal used in smuggling or in the unlawful importation, exportation, or conveyance of any goods. In Forbes v. Traders' Finance Corporation Ltd. [3] this Court held that a car used in the unlawful importation or conveyance of birds was forfeited whether or not the owner of the car knew of the use to which it was being put. Menzies J. [4] commented: 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. See also Windeyer J. [5] and Gibbs J. [6] . 1. (1971) 126 C.L.R. 429. 2. (1971) 126 C.L.R., at pp. 432-433. 3. (1971) 126 C.L.R., at p. 439. 4. (1971) 126 C.L.R., at p. 447.

To treat false in s. 229(1)(i) as meaning nomore than erroneous in fact is to give the word an interpretation which has been given to it elsewhere in the Act. Section 234(1)(d) provides that no person shall "[m]ake or give any entry which is false in any particular". Several decisions attest to the meaning of "false" in that paragraph as meaning wrong in fact. In Sternberg v. The Queen [7] , Dixon C.J. (with whom Webb and Kitto JJ. concurred) said of par. (d):

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. If the view contended for were correct, the only fact which could be wrong would be the belief of the person concerned; the belief would extend over the whole entry and there is only one belief in which he could be wrong and that is the belief in the correctness of the entry. A similar approach was taken by this Court (Dixon C.J., Williams and Kitto JJ.) in Davidson v. Watson [8] and by the Privy Council in Patel v. Comptroller of Customs [9] : see also Ex parte Falstein; Re Maher [10] ; Toy Centre Agencies Pty. Ltd. v. Spencer [11] . 1. (1953) 88 C.L.R. 646, at p. 653. 2. (1953) 28 A.L.J. 63, at p. 64. 3. [1966] A.C. 356, at pp. 364-365. 4. (1948) 49 S.R. (N.S.W.) 133, at p. 143. 5. (1983) 67 F.L.R. 458, at pp. 460-461; 46 A.L.R. 351, at pp. 353-354.

There is a link between ss. 229 and 234 which would make it surprising that the same word used in each of the sections should bear different meanings. The link was explained by Taylor, Menzies and Owen JJ. in L. Vogel & Son Pty. Ltd. v. Anderson [12] :

This section [i.e., s. 229], 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. It is true, as the respondent argued, that consistency of meaning is no more than a presumption which will yield to a context which demands a different meaning in one place to another. But it is significant that ss. 229 and 234 both lie within Pt XIII - Penal Provisions, s. 229 falling within Div. 1 - Forfeitures and s. 234 within Div. 2 - Penalties, hence the link referred to in L. Vogel & Son Pty. Ltd. v. Anderson. And while it is true, as Priestley J.A. noted, that the present form of the two sections "is the product of a long period of evolution", the sections are substantially as first enacted. Indeed par. (i) of s. 229(1) and par. (d) of s. 234(1) have remained unaltered since their introduction in 1901, save for the insertion of the word "give" in par. (d) in 1982. 1. (1968) 120 C.L.R. 157, at p. 169.

Counsel for the respondent submitted that reliance should not be placed on some of the decisions in which the meaning of false in s. 234 has been discussed because there was a failure or lack of necessity to distinguish between false in fact and deliberately false. Whether or not the argument has force in regard to some of the cases cited by counsel, it certainly cannot succeed in relation to the decisions mentioned earlier in these reasons. They clearly advert to the distinction.

To make a comparison between false in s. 229 and in s. 234 is not to overlook that, in s. 234, par. (e) refers to a statement "which is untrue in any particular": cf. "false in any particular" in par. (d). Nor is it to overlook decisions such as Cameron v. Holt [13] and He Kaw Teh v. The Queen [14] . In the former it was held that an offence under s. 138(1)(d) of the Social Services Act 1947 Cth is not committed unless the person charged with making or presenting to an officer of the Department of Social Security a statement or document which is false in any particular knows of the falsity of the statement or document or is recklessly indifferent to its truth or falsehood. In the latter it was held that, to sustain a conviction under s. 233B(1) of the Customs Act, it is necessary to prove that the person charged knew he was importing a prohibited import. These are cases which turn on the necessity to prove mens rea in a criminal prosecution - a question which was not raised in Sternberg [15] . The tide of authority on s. 229 runs strongly against the respondent. The word "false" in s. 229(1)(i) means no more than wrong in fact. The appeal must therefore be allowed.

1. (1980) 142 C.L.R. 342. 2. (1985) 157 C.L.R. 523. 3. (1953) 88 C.L.R., at p. 649.

The relief sought by the appellant includes an order that the declaration made by Yeldham J. that the Porsche motor vehicle owned by the respondent is not forfeited to the Crown be set aside. The appellant does not ask for an order of forfeiture because the respondent earlier lodged a bond to secure the release of the vehicle. No order is sought in regard to the bond. It is enough therefore that the appeal be allowed, the order of the Court of Appeal be set aside and the declaration made by Yeldham J. be also set aside.

The remaining issue in this case is narrowly confined. It is whether the word "false" in s. 229(1)(i) of the Customs Act 1901 Cth ("the Act") means "purposely untrue" or merely "wrong in fact". The relevant facts in the context of which that issue of construction falls to be determined are no longer in dispute and can be shortly stated. In the course of importing a motor vehicle, the respondent, Mr. Farmer, was required to answer (in writing) certain questions in a government form. The answer he gave to one of those questions was wrong, but not deliberately or intentionally so. The appellant Collector of Customs for New South Wales ("the Collector") maintains that the consequence of the giving of that unintentionally wrong answer was that the car was forfeited pursuant to s. 229(1)(i) of the Act.

Mr. Farmer initiated the present proceedings in the Supreme Court of New South Wales seeking declaratory relief against the Collector. The learned trial judge (Yeldham J.) held that the word "false", in the context of s. 229(1)(i), meant deliberately or intentionally untrue. His Honour made a declaration that the vehicle was not forfeited [16] . An appeal by the Collector to the New South Wales Court of Appeal (Hope, Samuels and Priestley JJ.A.) challenging his Honour's construction of s. 229(1)(i) was unanimously dismissed [17] . The Collector now appeals to this Court from the decision of the Court of Appeal to that effect.

1. (1986) 5N.S. W.L.R. 397. 2. (1987) 87 F.L.R. 149, 72 A.L.R. 691.

The following goods shall be forfeited to the Crown:

(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

It was common ground in argument in this Court, as it apparently was in the Court of Appeal, that the word "false", when viewed in isolation, is a latently ambiguous one. As the dictionaries confirm, it can mean merely "untrue" or "wrong". Or it can involve both subjective and objective elements and mean "purposely untrue".

There is nothing at all in the other words of s. 229(1)(i) which, as a matter of language or of sense, removes or lessens the ambiguity of the word "false". It was argued, on behalf of the Collector, that the absence of the word "wilfully" before "false" in the phrase "false or wilfully misleading" indicates that the word is used as meaning simply untrue. That argument does not, however, survive critical examination. Indeed, its starting point would seem to be an assumption that the word "false" does not bear the meaning which the argument is said to exclude since, if the word "false" was used in the sense of "purposely untrue", it would have been an exercise in tautology to have inserted the word "wilfully" before it. Moreover, it can be at least as strongly argued that the word "false" in the context of s. 229(1)(i) should be read as being in congruence with, rather than in contrast to, the neighbouring phrase "wilfully misleading" and, accordingly, as used in the sense of "purposely untrue".

Nor is the latent ambiguity of the word "false" in s. 229(1)(i) resolved by a consideration of the substantive content of that provision or of the context provided by the Act as a whole. Arguments and presumptions can be called in aid to support each of the above-mentioned possible meanings of the word. In the following three paragraphs, we refer briefly to the more obvious of those arguments and presumptions.

It was argued, on behalf of the Collector, that the settled meaning of the word "false" in s. 234(1)(d), a provision which has been said to be closely related to s. 229(1)(i) (see L. Vogel & Son Pty. Ltd. v. Anderson [18] ), is "wrong in fact" (see Sternberg v. The Queen [19] ; Davidson v. Watson [20] ) and that the presumption is that "the same meaning should be given to the same word wherever it occurs in a statute": per Gibbs J., McGraw-Hinds (Aust.) Pty. Ltd. v. Smith [21] . Plainly, there is some force in that argument. On the other hand, as Gibbs J. commented in Clyne v. Deputy Commissioner of Taxation [22] , the presumption that a word is used with a uniform meaning in a statute is not one "of very much weight it all depends on the context". In the same case [23] , Mason J. pointed out that the "presumption readily yields to the context". The presumption of a consistent use of the word "false" is, in any event, of little assistance in relation to the construction of a statute such as the Act where, as Priestley J.A. pointed out in the Court of Appeal, there does not appear to have been any attempt by the legislature to achieve a "high degree of consistency" in the use of terms such as false, untrue and misleading.

1. (1968) 120 C.L.R. 157, at p. 169. 2. (1953) 88 C.L.R. 646, at p. 653. 3. (1953) 28 A.L.J. 63, at p. 64. 4. (1979) 144 C.L.R. 633, at p. 643. 5. (1981) 150 C.L.R. 1, at p. 10. 6. (1981) 150 C.L.R., at p. 15.

It was also argued on behalf of the Collector that to read s. 229(1)(i) as involving a subjective element of intention or purpose was to read an additional word, such as "knowingly", into the words of the paragraph. This, so it was said, was impermissible, at least in the context of a forfeiture provision such as that contained in s. 229(1)(i): cf. Forbes v. Traders' Finance Corporation Ltd. [24] . There is, however, an obvious answer to that argument. To read the word "false", in a particular statutory context, as meaning "purposely untrue" does not involve reading an additional word into the relevant statutory provision. It involves no more than deciding that, in that particular statutory context, the word is used in that well-recognized permissible sense.

Finally, there were competing arguments which are based on the substantive content of s. 229(1)(i). They point in opposite directions. On the one hand, it is arguable that the purpose of forfeiture provisions, such as that contained in s. 229(1)(i), is "to ensure the strict and complete observance of the Customs laws" (per Dixon C.J., Burton v. Honan [25] ) and that that purpose would be best served by the automatic forfeiture of any goods in respect of whose entry or attempted entry any untrue material statement, however innocent, has been made. On the other hand, it seems to us to be more strongly arguable that clear words should be required before there is attributed to the Parliament an intention to take the draconian step of imposing automatic forfeiture as a penalty for " any " wrong "entry invoice declaration answer statement or representation" regardless of whether the wrong information was provided as the result of an innocent mistake or excusable ignorance. The effect of the penalty of automatic forfeiture under s. 229(1)(i) can be devastating and quite disproportionate in that it applies regardless of the value of the goods or the importance or effect of the wrong statement which was made. The circumstances in which a wrong statement of the type referred to in s. 229(1)(i) can be made and the possible innocent explanations of such a wrong statement (e.g., language difficulties or misunderstandings in construing a government form; a lowered awareness of detail at the end of a long journey) are manifold. It may not be permissible to read into a forfeiture provision, such as s. 229(1)(i), a word such as "knowingly" or a requirement of mens rea if the words which the Parliament has used are not of themselves capable of conveying such a meaning or such a requirement: cf. Forbes [26] . It is however, in our view, proper to approach the construction of the actual words of the Act on the basis that it is to be presumed that clear words would have been used if it were intended to impose automatic forfeiture as the penalty for "any" wrong "answer" regardless of whether it was knowingly or innocently given. Such a prima facie presumption supports reading the word "false" in s. 229(1)(i) as meaning purposely or intentionally untrue.

1. (1952) 86 C.L.R. 169, at p. 179. 2. (1971) 126 C.L.R., at pp. 439-440.

The above arguments and presumptions favouring one or other of the permissible meanings of the word false are, in our view, fairly evenly balanced. If it were necessary that we decide the matter by reference to them alone, we would incline to the view that the word "false" in s. 229(1)(i) should be read as meaning "purposely untrue". However, we find it unnecessary to dispose of the appeal on that basis. It seems to us that, regardless of what view one takes of the comparative weight of the competing arguments and presumptions, the latent ambiguity of the word "false" remains. Section 229(1)(i) is to be found in Div. 1 ("Forfeitures") of Pt XIII ("Penal Provisions") of the Act. It imposes forfeiture as the consequence of the giving of "false or wilfully misleading" information in relation to the entry of goods. The provision is, in our view, properly to be seen as penal or quasi-penal in character and as attracting the rule that "[t]hose who contend that [a] penalty may be inflicted, must shew that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty": Dickenson v. Fletcher [27] . In Lyons v. Smart [28] , Barton J. quoted the above words of Lord Esher (then Brett J.) in Dickenson v. Fletcher with approval and continued:

It is as true now as when Blackstone wrote it, that "The law of England does not allow of offences by construction". To these expressive authorities I may add, for the sake of the clear way in which it is put, a quotation from the American case of United States v. Lacher [29] . The words are those of Fuller C.J. delivering the opinion of the Court. He said: "As contended on behalf of the defendant, there can be no constructive offences, and before a man can be punished, his case must be plainly and unmistakably within the Statute." (See also, as to the need to read such a provision "strictly", Forbes [30] .) In the context of that clear rule, we agree with the conclusion reached by the learned trial judge and by all members of the Court of Appeal that the word "false" in s. 229(1)(i) should be strictly construed, in favour of the subject, as meaning purposely or deliberately or intentionally untrue. 1. (1873) L.R. 9 C.P. 1, at p. 7. 2. (1908) 6 C.L.R. 143, at pp. 157-158. 3. (1890) 134 U.S. 624, at p. 628. 4. (1971) 126 C.L.R., at pp. 442, 447.