Willey v Synan [1937] HCA 85

[75]

me that there is any real room for argument is whether the goods were or were not satisfactorily accounted for within the meaning of the section. It has been argued that the coins were satisfactorily accounted for when Willey said that he found them - at least, that they were satisfactorily accounted for if this statement were true. Tn my opinion, however, what has to be satisfactorily accounted for is not the existence of the goods or the possession of them by a particular person when they are found after the arrival of the ship, but the presence of the goods on the ship. It is not sufficient for a person to say " I found these goods on the ship " in order to avoid the application of sec. 229 (e). The question to be answered, and to be answered satisfactorily, is: "" How does this thing come to be on this ship?" To say "I found it here " only states the fact to be explained. plus the circumstance that the finder became aware of the fact, and does not explain it. Such a reply does not account at all for the presence of the goods on the ship. Further, the goods can be satisfactorily accounted for only if it can be shown that they are lawfully on the ship. Thus a person who tries to smuggle goods and repents may give a complete account of the origin, manufacture and history of the goods, explaining precisely how he got them and how he brought them on board the ship, and showing exactly why they are, at the time when they are discovered, in a particular portion of the ship. Let it be supposed that the explanation is true. Such an explanation accounts completely for the goods in a causal sense, but it does not satisfactorily explain the presence of the goods having regard to the provisions of the Customs Act directed against smuggling. Although a person completely explains all the matters to which I have referred and demonstrates beyond any doubt that he is the true owner of the goods, his goods may be forfeited under sec. 229 (e) if the account which he gives explaining their presence on the ship is not satisfactory. It is, I think, for a court, when the matter comes before a court, to decide whether goods are satisfactorily accounted for, just as it is for a court to determine whether they were referred to in the inward manifest or were baggage of the crew or passengers. In this case no account is given explaining the presence of the goods on the ship.

[93]

But I think that it necessarily follows that he must prove his to possession of the goods, apart from the forfeiture. To avoid nonsuit, therefore, it was necessary for the appellant to add evidence of such a right to possession of the goods as would ent him to recover from a person seizing them without statutory other lawful authority. This, in my opinion, he failed to do. T assume that, among the materials admitted in evidence inclu those admitted subject to objection, there can be found admissil evidence of circumstances sufficient to support or authorize inference that it was the plaintiff who discovered the coins an handed them to the master. It is unnecessary for me to examine the correctness of the assumption. If the facts are what the plaintiff sought to prove, he must, in my opinion, fail. He must fail because the facts show that he never obtained a possession of the coins entitling him to recover them even if there had been no forfeiture. But he must fail for the further reason that under sec. 229 (e) the same facts would, as I think, expose the goods to forfeiture. It is" an important consideration that the goods were concealed in the ship and that this was done for the purpose of exporting them from - New Zealand, and, as I think should be inferred, for the purpose of - introducing them into Australia. They were not lost. They were stowed where their owner or his agents believed he or they could obtain them and that owner by himself or his agents entertained an intention of exercising over the coins such control and disposal as opportunity might allow. When the plaintiff, as the ship's boatswain, discovered the coins and handed them to the master, he was the instrument by which this opportunity for control and disposal was displaced in favour of the master. It does not appear what - passed between the boatswain and the master when the latter took the coins into his keeping. But it is not to be supposed that the plaintiff asserted any independent possession of his own. The concealment of goods on a ship for the purpose of clandestine carriage is a matter that concerns the master and owners. It would be inconsistent with the duties of a member of the ship's company to deal with goods so concealed on his own account. Although it may be taken that he found the coins, it does not

[159]

Proceedings under sec. 207 are in rem. The question whether judgment of forfeiture should be given cannot depend upon the question whether it is A or B or C to whom notice has been given under sec. 207. Given perfect honesty on the part both of the plaintiff and the master, what further " account" could they give except the one given here? It is said also that the account given merely amounts to saying : - " Here are the goods! The goods are here!" ; so that there is no " satisfactory" account. But this is not so. The goods when found on board were outside Australia ; when found after arrival, they were inside Australia. The theory of the defendant is, apparently, that goods honestly discovered during the voyage by the master or a sailor are necessarily forfeited to the Customs in Australia if an Australian port happens to be the next port of call, because ex hypothesi the finder cannot state the whole truth, and that is required for the purposes of the Australian Customs. I venture to think that this is not the scope and purpose of sec. 229 (e). By parity of reasoning, the true owner of goods, if resident in New Zealand, could not avoid the forfeiture although he proved that the goods had been stolen from him by some person unknown and they were now in the possession of the Australian Customs. For the Australian Customs would say : "You have failed to tell me who the thieves are and how they got them on board the vessel which has now called at this Aus- tralian port." In my opinion, the theory behind these arguments for the defendant is unsound, and every true account by a master of a vessel of his having found the goods on board whilst his vessel was on the high seas must be accepted as a satisfactory account within the meaning of sec. 229 (e). This does not mean that the master or any other person becomes invested with any right to the goods, but means only this, that the reason for the omission of the goods from the manifest and the list of baggage is at once clear, so that a competition for the right of possession of such goods must be determined according to the ordinary law. It must be remem- bered that, except for the purpose of preventing, taxing or regulating importation, the Customs have, generally speaking, nothing to do with the investigation of questions of ownership and possession of

Willey v Synan [1937] HCA 85 - HCA 1937 case summary — Zoe

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Judgment (183 paragraphs)