Re Commissioner of the Australian Federal Police and First Constable A Hambling v Katherine Craven [1989] FCA 50; 48 Customs 20 FCR 547 98 ALR 249 (8 March 1989)

FEDERAL COURT OF AUSTRALIA

Re: THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE AND FIRST
CONSTABLE A HAMBLING
And: KATHERINE CRAVEN
No. NG1291 of 1988
FED No. 48
Customs
20 FCR 547
98 ALR 249

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Sheppard(2) and Foster(3) JJ.

CATCHWORDS

Customs - seizure of vehicle claimed to be "forfeited goods" containing unlawfully imported drugs - notice served requiring action for recovery to be commenced within four months - notice served and expired - vehicle deemed to be condemned as forfeited to Crown after four months- application for declaration that seizure unlawful - whether proceeding under s.39B of Judiciary Act available to claim unlawful seizure - if so, whether applicant made out case under s.39B.

Customs Act 1901 ss. 203, 205, 208A, 229(1)(j)

Judiciary Act 1903 s.39B

Federal Court of Australia Act 1976 s.21

HEARING

SYDNEY
8:3:1989

Counsel for Appellant: Mr C.J. Stevens

Mrs P. Sharp

Solicitors for Appellant: Australian Government Solicitors

Counsel for Respondent: Mr J.F. Boultbee

Solicitors for Respondent: Perry & Smith

ORDER

The appeal be allowed.

The declaration and orders made by the Hon Mr. Justice Einfeld on 23 September 1988 be set aside.

In lieu thereof the application dated 21 October 1987 made to this Court by the respondent, Katherine Craven, be dismissed.

The respondent, Katherine Craven, pay to the appellants their costs of the said application and of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

I have read the reasons for judgment of Foster J. I agree with the orders which he proposes and, subject to the following comments, I am in agreement with his reasons.

2. Mrs Craven's vehicle was seized in reliance upon the terms of s.203(2) of the Customs Act, 1901. The procedures laid down in ss.203 to 208A inclusive were then followed leading to the apparent condemnation of the goods as forfeited to the Crown. Notwithstanding this it is submitted in effect on behalf of Mrs Craven that s.203(2) refers only to a lawful seizure and not to a seizure purporting to be made under s.203(2) which may prove to be unlawful. Mrs Craven seeks to use s.39B of the Judiciary Act 1903 to claim that ss. 203 to 208A inclusive were inapplicable because the seizure was unlawful. I have reservations about the correctness of this approach (cf. Collector of Customs v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 at 314). However, in view of the way in which this case has been conducted both in the Court below and on appeal I express no conclusion on this question.

3. Accepting that the approach by Mrs Craven under s.39B is open to her, it involves the conseqence that the issues raised are different from those which would arise, if following the notice under s.208A (1)(b) of the Customs Act she had brought proceedings for recovery of the vehicle in accordance with s.208A(2)(b). As the applicant under s.39B of the Judiciary Act asserting the unlawfulness of the seizure she must satisfy the Court of that unlawfulness. This necessarily involves the proof of a complex of negative issues. On the material available before us, it is my opinion that such unlawfulness has not been established in the present case.

In this matter I have had the advantage of reading the judgment to be delivered by Foster J. I agree in his conclusion that the appeal should be allowed, the judgment below set aside and an order made that the application to the Court under s. 39B of the Judiciary Act 1903 be dismissed with costs.

2. I agree with Foster J. that the respondent's claim fails because of her inability to establish that the vehicle was unlawfully seized. If she had proceeded by way of an action for detinue or conversion in a court of ordinary jurisdiction, presumptions would have been available to her which would have made it incumbent upon the appellants to justify the seizure. For reasons which are not apparent to me, she did not follow this course but brought this application instead. She must establish the necessary elements of her case and is not entitled to the benefit of the presumptions which would have applied had she sued at common law. One of these elements was that Constable Hambling had no reasonable grounds for a belief that the vehicle was "forfeited goods"; see subsec. 203(2) and para. 229(1)(j) of the Customs Act 1901. There is no satisfactory evidence which would enable the Court to draw a conclusion favourable to the respondent on this matter.

3. This view of the matter is in accordance with principle, but if support for it were needed, it is to be found in the judgment of Toohey J. (when a judge of this Court) in Brunetto v. Collector of Customs [1984] FCA 383; (1984) 4 FCR 92, with which I respectfully agree.

4. What I have said makes it unnecessary to reach a conclusion on the question whether the only avenue of redress which the respondent had was an action for detinue or conversion brought within the time frame provided for in the procedural code found in ss. 203 to 208A of the Act. I should prefer not to express an opinion in that matter in this case. Notwithstanding what Foster J. has said concerning the judgments delivered in Pearce v. Button [1986] FCA 51; (1986) 65 ALR 83, I think there are indications that the members of the Court in that case, although not directly concerned with a matter such as the present, may have thought that a person whose vehicle has been seized might, independently of the Customs Act, challenge the validity of the seizure of the vehicle or the decision to seize it by relying on administrative law remedies rather than upon those provided for by the common law. The matter was not fully argued before us and I would prefer to leave the matter open until there is a case where the point arises directly and is the subject of full argument.

5. In the result I would allow the appeal and make the other orders foreshadowed at the commencement of these reasons.

This is an appeal from the decision and orders of a single Judge of the Court given on the 23rd September, 1988 in proceedings brought by the respondent Katherine Craven against the first appellant as being the "appropriate person" and the second respondent as being the "responsible person" under relevant sections of the Customs Act 1901, to be discussed later. The applicant was on the 21st March, 1985 the owner of a Datsun Patrol motor vehicle registered number KUS 073 which , on that day, was seized by the second appellant in purported reliance upon s 203(2) of the Customs Act 1901 ("The Customs Act"). The proceedings before the learned trial Judge were brought for the purpose of recovering possession of this vehicle. They had as their basis s 39B of the Judiciary Act 1903 in that they were brought for the obtaining of injunctive relief against an officer of the Commonwealth and also under s 21 of the Federal Court of Australia Act 1976 for associated declaratory relief.

2. His Honour declared that "the seizure of the motor vehicle by the second respondent pursuant to s 203 of the Customs Act was an unlawful seizure" and ordered that "the respondents are to deliver forthwith to the applicant in good condition the said motor vehicle". He also made consequential orders as to costs and as to liberty to apply.

3. As some detailed consideration of the relevant sections of the Customs Act will be required in these reasons, it is convenient to set out those sections now. They are as follows:-

"203. (1) In this section, 'authorized person'
means-
(a) a member of the Defence Force;
(b) an officer of Customs; or
(c) an officer of police.
(2) An authorized person may seize any forfeited
goods or any goods that he believes on reasonable
grounds are forfeited goods.
....
205. (1) In this section -
''appropriate person' means -
...
(b) in relation to narcotic-related goods -
(iv) the Commissioner of Police
....
'responsible person' means -
...
(b) in relation to narcotic-related goods - the
member of the Australian Federal Police who seized
the goods ....
(2) Subject to this section, where goods are
seized under section 203, the responsible person
shall, as soon as is practicable, serve on the
owner of the goods or the person who had
possession, custody or control of the goods
immediately before they were seized, either
personally or by post, a notice in writing -
(a) identifying the goods;
(b) stating that the goods have been seized under
section 203 and specifying the reason for the
seizure;
(c) setting out the terms of the provisions of
sub-section (6); and
(d) specifying, and setting out the address of,
an appropriate person and stating that any notice
under sub-section (6) is to be given to that
person.
....
(6) Where a notice under sub-section (2) is served
in respect of goods seized under section 203, the
goods shall be deemed to be condemned as forfeited
to the Crown unless, within 30 days after the day
on which the notice was served, the owner of the
goods or the person who had possession, custody or
control of the goods immediately before they were
seized gives notice, in writing, to the
appropriate person specified in the notice under
sub-section (2) stating that he claims the goods.
....
208A. (1) Where notice under sub-section 205 (6)
is given in respect of any goods seized under
section 203, the Collector or member of the
Australian Federal Police who is in possession of
the goods may -
(a) retain possession of the goods without taking
any proceedings for the condemnation of the goods;
and
(b) may serve on the person who gave that notice,
either personally or by post, a notice in writing
requiring him to bring an action against him
within 4 months of the service of the notice for
the recovery of the goods.
(2) Where -
(a) a notice under paragraph (1) (b) in relation
to goods is given; and
(b) the person to whom the notice was given does
not, within 4 months after the service of the
notice, bring an action for the recovery of the
goods,
the goods shall be deemed to be condemned as
forfeited to the Crown without any further
proceedings.
....
229. (1) The following goods shall be forfeited to
the Crown:
....
(j) Any carriage or animal used in smuggling or in
the unlawful importation, exportation, or
conveyance of any goods.
...."

4. The respondent's vehicle was seized by the second appellant, First Constable A. Hambling of the Australian Federal Police, at Bowraville in the state of New South Wales on the 21st March, 1985 in the course of investigations which involved the arrest of the respondent and her being charged (inter alia) with conspiracy to import cannabis resin of a trafficable quantity. It was alleged that the cannabis in question had been conveyed in the vehicle from the time it was placed in the vehicle outside the Nambucca Heads Post Office to the point in Bowraville where the Police Officers intervened. The cannabis was alleged to be concealed in a box of which the respondent's husband took delivery from the Post Office before placing it in the vehicle, which was then driven away by the respondent. I shall make further reference to the facts later in these reasons.

5. It may be noted that the appellant was committed for trial in respect of the charges but was subsequently acquitted by direction of the trial Judge. It appears that the cannabis alleged to have been conveyed in the vehicle was not produced at the committal nor at the trial. The evidence relating to this matter in this Court was very scanty, consisting of an excerpt from the transcript of the committal proceedings indicating, apparently, that the prosecutor sought to tender the relevant cannabis but was unable to do so because it could not then be located. It appears that it has never been located.

6. The fact of the acquittal is, of course, quite irrelevant to proceedings brought for the recovery of the seized vehicle (Littles Victory Cab Co Pty Ltd v Carroll (1948) VLR 249; Wiedenhofer v Commonwealth [1970] HCA 54; (1969-1970) 122 CLR 172; Vickers v Minister for Business and Consumer Affairs (1969-1970) 43 ALR 389).

7. Shortly after taking possession of the vehicle, the second appellant served upon the respondent a notice in printed form pursuant to s 205(2). The notice was in the form of annexure "C" to the affidavit of the second appellant, dated the 19th February, 1988, read in the proceedings before the learned trial Judge. The "reason for seizure" given in the notice was, "This motor vehicle was used in the transporting of a large quantity of narcotics, which have been imported into Australia in contravention of the Customs Act". No submission was made before his Honour or in this Court that the notice was other than a valid notice.

8. On the 9th April, 1985 the respondents' solicitors made a claim for the vehicle on behalf of the respondent pursuant to, and within the time limited by s 205(6).

9. On the 21st May, 1986 this claim was responded to by an appropriate notice under s 208A(i)(b) requiring that the respondent bring an action for the recovery of the goods within four months. However, this step was not taken, with the apparent result that, pursuant to the section, the vehicle was "deemed to be condemned as forfeited to the Crown without any further proceedings."

10. After the respondent's acquittal, her solicitor sought the restoration of the vehicle in correspondence commencing on the 17th November, 1986 and culminating in the application dated the 21st October, 1987 to this Court. It is clear that the position adopted by the respondents was that the vehicle had been condemned as forfeited by operation of the section and was subject to sale. Agreement was reached between the parties that the sale would not go forward pending the resolution of the application to this court.

11. The application was heard by Einfeld J. on the 15th August, 1988. It proceeded largely by affidavit evidence supplemented by some oral evidence from some of the deponents. There were no pleadings in the matter and, consequently, there is no clear definition of the issues posed for decision at first instance. I find it helpful in approaching the resolution of this matter to consider, how, in my view, the issues for trial would have presented themselves had the matter been pleaded to issue. This necessarily involves a consideration of the meaning and effect of the sections which have been set out above. These, or equivalent earlier sections, have been the subject of judicial consideration in earlier cases, to which it is now convenient to turn.

12. In Willey v Synan [1935] HCA 76; (1935) 54 CLR 175, the High Court considered the sections of the Customs Act, which were then equivalent to the present sections 205 and 208A. Dixon, J. (as he then was) (at p 182) described the operation of these sections as follows:-

"Sec 207, under which the defendant as Collector
gave notice to the plaintiff, is one of a number
of provisions dealing with the seizure and
forfeiture of goods. Under sec. 205, the officer
seizing the goods is to notify the "owner" unless
he be present at the seizure. If he does so, the
goods shall be deemed to be condemned unless the
owner makes a claim within one month of the
notice. Sec. 206 enables the Collector to deliver
goods seized to the owner on his giving security.
Under sec. 207, if a claim to goods seized is
served on the Collector by the owner, the
Collector is empowered to retain possession of the
goods without taking any proceedings for their
condemnation and, by notice under his hand, to
require the claimant to enter an action against
him for the recovery of the goods. If the
claimant does not, within four months after the
date of such notice, enter such action, the goods
shall be deemed to be condemned without any
further proceedings."

13. His Honour further described the effect of the notice given under the then s 207 as follows (at pp 185-6):-

"The notice is a step taken by him directed at
obtaining a condemnation. It is a statutory
substitute for judicial proceedings by the Crown
against the goods. Its effect is to cast the onus
of taking proceedings upon the owner or supposed
owner. In the absence of such a provision, it
would be incumbent upon the Attorney-General, or
upon the party making the seizure, to file in a
Court of record an information in rem."

14. His Honour further said (at p 186) that the Collector's having proceeded under s 207 had:-

"Thus made it necessary for the plaintiff to sue or
allow the forfeiture to take place."

15. Latham, C.J. (at p 180) in considering the effect of the sections, said as follows:-

"In this case the Collector really initiated legal
process by giving a notice under sec. 207 which
would result in the exclusion of any right of the
plaintiff unless the plaintiff himself took legal
proceedings. If the Collector had not acted under
sec. 207, it would not have been necessary for the
plaintiff, in order to prevent the extinction of
his right, to take any proceedings. If, no notice
having been given, he took proceedings in
conversion or detinue, he would be in the same
position as any plaintiff who comes into the
jurisdiction to complain of an act which he
alleges to be wrongful. But, as the Collector has
given him a notice under sec. 207, he is, in
effect, forced into legal proceeding, not merely
to enforce his claim, but to prevent his claim
from being extinguished."

(See also Burton v Honan [1952] HCA 30; (1952) 86 CLR 169 at p 176, 178).

16. The sections of the Customs Act set out above, which are the equivalent of those considered in these cases, together with associated sections, were the subject of detailed consideration in the judgments in Pearce v Button [1986] FCA 51; (1986) 65 ALR 83. Lockhart, J. (at pp 93, 94) set out the substance of sections 229, 203, 204, 205, 206, 207, 208, and 208A. His Honour then continued:-

"The Customs Act thus contains a code governing the
forfeiture of goods, their seizure and retention.
It provides machinery whereby a person claiming to
be the owner of the goods or entitled to their
possession may sue for their recovery by action in
a court of competent jurisdiction presumably in
detinue or conversion. But it is fundamental to
the operation of the Customs Act that the goods be
validly retained by the Customs authorities after
seizure and pending their disposition by sale,
destruction, return on security or otherwise.
It is the evident scheme of the Customs Act that
once goods have been lawfully seized the person
who claims to be their owner or entitled to their
possession may recover them by appropriate
proceedings in the courts. Doubtless, the
lawfulness of the seizure may be challenged in
those proceedings and the question whether the
goods were forfeited goods may be investigated.
But once the lawfulness of the seizure is
conceded, as it is here (ie in relation to the
second limb of s 203(2)), and once it is
recognized that the Customs Act does, and indeed
must for its proper operation, permit the
retention of lawfully seized goods in the hands of
the Customs authorities until they have been dealt
with by due processes under or recognized by the
Customs Act, the retention of the goods by the
Customs authorities in the meantime is not
susceptible to challenge."

17. Reference may also be made to a similar detailed analysis of the sections by his Honour in Toy Centre Agencies v. Spencer (1983) 46 ALR 351 at pp 355-357. In both these cases the applicant had sought review of the administrative decision to effect seizure under s 203(2) by way of application under the Administrative Decisions (Judicial Review) Act 1977. Similar applications were considered in Vickers v. The Minister for and Consumer Affairs and Others (1982) 43 ALR 389 (Morling J.); O'Neil v. Wratten and Others (1986) 65 ALR 481 (Jackson J.), and Brunetto v. Collector of Customs [1984] FCA 383; (1984) 4 FCR 92 (Toohey J.). In all these cases the Court assumed jurisdiction to determine whether a decision to seize goods under s 203 had been lawfully made. It must be noted, however, that in none of the cases had the customs authorities taken the statutory procedure to the stage of issuing a notice under s 208A requiring the claimant to take proceedings within four months, for the recovery of the goods. It would appear that no case has dealt with the question arising in the present litigation namely, what relief if any can be sought by a claimant who has failed to bring recovery action within the four month period and whose goods have therefore been "deemed to be condemned as forfeited to the Crown without any further proceedings."

18. Against this background I turn now to consider what the issues would have been in the proceedings before the learned trial Judge if they had been defined in formal pleadings.

19. Clearly, the respondent would have asserted her ownership of the vehicle, her right to possession of it, the wrongful possession of the vehicle by the present appellants and their refusal to deliver the vehicle to her upon demand. Additionally she would have pleaded other matters going to the discretionary granting of injunctive relief, in particular the threatened immediate disposal of the vehicle by way of sale. I put aside these discretionary matters. In defence, the appellants would have traversed the respondent's title and right to possession. It is possible that they would have also alleged forfeiture of the vehicle because of facts bringing it within the operation of s 229(1)(j) and seizure of the vehicle pursuant to s 203(2) either on the basis of its forfeiture or belief on reasonable grounds that it was forfeited or both. It is also possible that they would have pleaded the service of the notice upon the respondent pursuant to s 205(2), the receipt of a claim for the vehicle from the respondent pursuant to s 205(6), and reliance upon s 208A(1)(a) as establishing their right to possession of the vehicle. This latter defence might well have been pleaded only for more abundant precaution, because the appellants would clearly have relied upon the service of the ultimate notice contemplated by the catena of sections, namely the notice under s 208A(1)(b) requiring the bringing of the recovery action within four months. There would then have been pleaded the failure of the respondent to bring such an action within the time limited with the consequent deeming of the goods as having been condemned as forfeited to the Crown.

20. From the material in the appeal papers and from the course of argument on appeal, it is tolerably clear that all the issues analysed above were raised and debated with varying degrees of emphasis before the learned trial Judge.

21. It must be recognised, however, that the defence lastly referred to would necessarily have called for a reply on the part of the respondent. Clearly it would not have been possible successfully to deny the giving of the appropriate notice under s 208A(1)(b) and the failure to bring the recovery action within the stipulated four month period. Prima facie, then, s 208A(2)(b) would have come into operation with the result that a statutory condemnation of the goods would have occurred, with the consequential extinction of the respondent's title.

22. From the way in which the respondent's case was conducted at first instance and before this Court, it appears that, in continuation of pleading, the respondent would have alleged, in effect, that the statutory condemnation did not occur because no lawful seizure of the goods had taken place pursuant to s 203(2). In answer to this the appellants would have, in effect, demurred, asserting that these allegations afforded no answer in law to the statutory condemnation. Possibly, also, as a matter of more abundant precaution, there would have been a reassertion that the seizure was properly based upon the prior forfeiture of the vehicle and/or the belief of the second applicant, upon reasonable grounds, that the vehicle was so forfeited.

23. Again, it appears, that these issues were raised and debated before his Honour although not precisely in the manner analysed above. With the advantage of hindsight, the comment might be made that it might have been advantageous if the purely legal question whether the statutory condemnation of the vehicle could be overturned had been determined as a preliminary point.

24. In the event, however, his Honour held that the deemed statutory condemnation did not operate to prevent the pursuit by the respondent of a remedy under s 39B of the Judiciary Act. His Honour found, on the evidence, that the vehicle was not forfeited under s 229(1)(j) and that, consequently, seizure on that ground could not be justified under s 203. He made no finding on the question whether the second appellant believed, on reasonable grounds, that the vehicle was forfeited, this being the alternative basis put forward as justifying the seizure. His Honour said that, as a matter of construction, this question did not arise. I do not understand his Honour's construction to have been supported in argument before this Court.

25. His Honour, accordingly, found that the vehicle had been the subject of wrongful seizure, made a declaration accordingly, and ordered the return of the vehicle to the applicant.

26. In holding the vehicle was not forfeited under s 229(1)(j) as having been used in the unlawful importation or conveyance of the narcotic drug his Honour had regard first of all to the passage from the judgment of Windeyer J. in Forbes v. Traders Finance Corporation Ltd. ((1971) [1971] HCA 60; 126 CLR 429, at p 445) where his Honour said:

"At the outset I may say that a vehicle is not
forfeited as having been used in unlawful
conveyance unless its use was in the control of a
person engaged in the illegality. A smuggler, who
travels with his smuggled goods in a public
vehicle, train or bus, does not thereby cause it
to be forfeited; and no conclusion can be founded
on such suppositions."

27. The respondent gave evidence that she had no knowledge that the box which her husband brought from the Nambucca Heads Post Office and placed in her vehicle contained any prohibited narcotic substance. For some reason she was not cross-examined on her affidavit and his Honour accepted her evidence as establishing that she was not, although in control of the vehicle, engaged in the relevant illegality. His Honour rejected the tender of a record of interview conducted with her by the second appellant, on the basis that it did not contain any admissions of any offence by the respondent. Although there are no direct admissions, I consider that the record contains material which would be relevant on the question of the respondent's knowledge of the presence of narcotics in the box. In my view, the record was admissible on this issue. However, it does not appear to have been tendered on this issue but merely on the question whether the discretionary remedy of injunction should have been granted.

28. I agree, with respect, with the decision of Toohey, J. in Brunetto v. Collector of Customs [1984] FCA 383; (1984) 4 FCR 92, that a person challenging a seizure of goods under s 203 (2) bears the onus of negativing the existence of the two bases for seizure set out in that section. The record would appear to contain material relevant to the question of whether that onus had been discharged.

29. There also appears to have been an issue of fact as to whether there was any narcotic in the package in the car. It is clear that the narcotic alleged to have been included in it was not produced at the committal proceedings nor at the trial. Additionally, there were some gaps in the evidence bearing on this question. His Honour had clear evidence from the second appellant that the box in question, on examination by Customs Officers when it entered Australia by way of postage from overseas, had been found to contain some forty-eight packets of a substance having the appearance of cannabis resin. The packages were concealed in the lining of the box. The box was addressed to "Tristan Parry, PO Valla Beach NSW Australia". The constable took possession of the box, its wrappings and its contents from the Customs officers who had made the discovery and took them to the Regional Headquarters Drug Registrar's Office at Redfern where he gave instructions for the analysis of the contents, for photographs to be taken, and for the substitution in the box of packets of black bread for the suspected narcotic. There was to be left in the box one packet of the narcotic containing a trafficable quantity of the drug. The box was then to be re-packed in its original wrappings. He subsequently picked up the box which was then re-wrapped in its original form. It seems clear that he did not personally ascertain that at that point of time it contained the one packet of cannabis resin which, in accordance with his instructions should have been there. It is true that an analysis of the affidavit evidence of Police Officers as to their giving effect to the instructions given by the second respondent contains some gaps which could raise a query whether the relevant packet had found its way back into the box at the time that the second respondent took possession of it to take it to the Post Office to which it was addressed. In his judgment, his Honour spoke of "evidence which throws doubt upon the existence of this narcotic" (in the box). He also speaks of there being "no evidence that anything found in the applicant's vehicle was in fact analysed as being a prohibited narcotic". With respect, I feel that these expressions indicate that his Honour was not bearing in mind where the onus of proof lay. It lay upon the respondent to establish that there were in fact no narcotic goods in the box in the vehicle. Whatever doubts may arise, consequent upon gaps in the evidence in the chain of handling of the relevant packet, those gaps, in my view, fall far short of establishing the non- existence of the narcotic in the vehicle.

30. In any event, it clearly lay upon the respondent in discharging the onus of proving that the seizure was unauthorised, to establish that the second appellant did not believe on reasonable ground that the box contained the relevant package of cannabis resin at the time it was being conveyed in the vehicle by the respondent, she being then engaged in the relevant illegality. It is a strange feature of the case that the second appellant neither in his affidavit nor in his oral evidence, gave any direct testimony as to his belief on these matters. However, neither was it put to him in cross-examination that he held no such belief. It was proved that he had the information as to the original concealment in the box of the very large quantity of cannabis resin, that he gave the instructions as to the re-packaging of the box and the inclusion therein of the single packet of narcotic, and that he personally delivered the box to its place of destination. He was also made aware, before seizure of the vehicle, that the respondent herself had filled out a postal form requiring the re-delivery of the box to her at her own address. He had seen her driving the vehicle at the time when the box was in fact collected, and placed in it.

31. His Honour was, apparently, of the view that once he had determined that the vehicle was not forfeited by reason of the respondent's not having been engaged in the relevant illegality then, as a matter of construction, no question arose as to the officer's belief on reasonable grounds of the vehicle's being forfeited goods. I respectfully disagree with this construction of s 203(2), which construction, as already indicated, was not sought to be supported in argument. Consequently, in my view, it lay upon the respondent to prove, in order to establish her right to relief, that the seizure was also unlawful in that the second appellent when taking the vehicle, did not believe the facts establishing the forfeiture or, alternatively, had no reasonable grounds for believing in the existence of such facts. I, for my part, consider that if his Honour had considered this question he would necessarily have come to the conclusion that the respondent had failed to discharge this onus. The matter is, in my view, so clear as not to require that the case be sent back so that this issue may be determined at first instance.

32. However, there is further reason for the case not being so dealt with. In my view, had the question of law referred to above been dealt with as a preliminary point, it would have been unnecessary to embark upon a consideration of the issues of fact which I have been discussing. I am quite satisfied that the statutory condemnation of the vehicle which had occurred was not susceptible of being set aside by the subsequent establishment that the seizure under s 203(2) was unjustified. Although the question of the lawfulness of the seizure could have been raised in the proceedings available to the respondent under s 208A, it was, in my view, foreclosed by failure to bring those proceedings within the stipulated period.

33. Some support for the submission that a statutory condemnation of seized goods can be avoided by a successful attack on the lawfulness of the original seizure is sought to be extracted from passages in two earlier judgments.

34. In Brunetto v. Collector of Customs (supra) Toohey J. says (at p 95):

"The scheme of the relevant provisions of the
Customs Act 1901 (Cth) has been outlined in recent
decisions, in particular Vickers v. Young [1982] FCA 72; (1982)
65 FLR 260 and Toy Centre Agencies Pty Ltd v.
Spencer (1983) 46 ALR 351. For present purposes
it is enought to note that seizure under s 203
does not of itself effect a forfeiture of goods.
Once goods are seized, s 205 requires 'the
responsible person' to serve on the owner of the
goods a notice as soon as practicable. By reason
of s 205(6), where a notice is served, the goods
'shall be deemed to be condemned as forfeited to
the Crown' unless within the time specified the
owner gives notice claiming the goods. The
question whether the goods are forfeited to the
Crown may then be determined in the courts. I
must emphasise that, in the present proceedings, I
am not concerned to determine whether the goods
are forfeited goods; I am concerned only to review
the decision to seize them. Of course if the
decision to seize is set aside in this
application, the subsequent provisions of the
Customs Act 1901 are inoperative. If the decision
is not set aside, the provisions remain operative
and it is for the applicant to challenge the
forfeiture."

35. The other passage relied upon is that already cited from the Judgment of Lockhart J. in Pearce v. Button [1986] FCA 51; (65 ALR 83 at pp 94,95) where his Honour discusses the Customs Act code governing the forfeiture of goods, their seizure and retention. and where his Honour says "It is the evident scheme of the Customs Act that once goods have been lawfully seized the person who claims to be their owner or entitled to their possession may recover them by appropriate proceedings in the court."

36. I do not consider that these passages support the contention that, once condemnation and forfeiture to the Crown has occurred by force of the Statute, that result can be subverted by proof that the original seizure was not "lawful". It is, by then, too late to raise such a matter. As already indicated, neither of these cases involved the operation of s 208A(2)(b). In each case action had been taken within the prescribed time to challenge the seizure and detention of the goods in question. Statutory condemnation had not occurred and its effect was not in question. Furthermore, the passages cited above from Willey v. Synan, in my opinion, are sufficient authority to the effect that if a claimant does not, in response to a notice to do so, bring action to recover seized goods (in which action he would, of course, assert all matters going to his right to possession and the wrongfulness of the Customs Officers seizure and retention of the goods) then, at the expiration of the prescribed period the Crown's title to the goods is confirmed and his is extinguished.

37. There can be little doubt that, in some cases, the operation of the section must produce harsh results. This has been recognised in many cases but has not been admitted as a reason for construction of Customs legislation other than in accordance with the plain meaning of the words of the statute (see eg. DeKeyser v. British Railway Traffic and Electric Co. (1936) 1 KB 244; Lttles Victory Cab Co. v. Carroll (1948) VLR 249 at p 255). As Lockhart J. said in Toy Centre Agencies v. Spencer (46 ALR 351 at 355):

"The provisions of the Act relating to forfeiture
and seizure have a long history and their
operation may have drastic consequences and cause
hardship. This arises from the very nature and
purposes of the Act including the promotion of
Australia's trading interests, the encouragement
of local industry and the collection of revenue.
The Act is an important instrument to governments
in the implementation of their fiscal and other
policies."

38. I should, perhaps, add that I do not reject the possibility of a deemed condemnation under s 208A(2)(b) being successfully attacked on grounds of fraud, in the same way as a final judgment may be impeached on this basis. (see Halsbury Laws of England (4th ed.) Vol 26 p 285). Such a question does not arise in these proceedings and I express no concluded view upon it.

39. For these reasons I am of the view that this appeal should be allowed, the judgment and orders of the learned trial Judge be set aside, the respondent's application to the Court be dismissed, and that the respondent pay the appellants' costs of the application and the appeal.