HIGH COURT OF AUSTRALIA

                                                        Wilson

                                                           Vs.

                                 Chambers and Company Proprietary Limited

                               (Knox C.J., Isaacs, Higgins, Rich and Starke JJ.)

                                                     8 June 1926

Knox C.J.

These were appeals from determinations of a Stipendiary Magistrate dismissing a number of
informations for alleged offences against the Customs Act 1901-1920.

The respondent Company was charged with offences against sec. 33, sec. 68 and sec. 234, and the
respondents William Chambers and Lawrence Chambers were charged with offences against sec.
236 of that Act.

The relevant facts on which these charges were founded were, so far as disclosed by the evidence, as
follows, namely:--The Company was the consignee of 7½ tons of paint shipped on board the
Steamship Nauru Chief in England and consigned to Sydney. The ship went from England to Nauru,
and thence to Port Kembla, omitting to call at Sydney. She arrived at Port Kembla on 6th or 7th of
September 1922 and remained there for thirteen hours for the purpose of bunkering. The respondent
Lawrence Chambers and one Vogil, an employee of the shipowners, the British Phosphate
Commission, went to Port Kembla to meet the ship, and Chambers told Vogil that there was paint on
board the ship for him and he was going to land it there. Port Kembla is a proclaimed port and a
Customs officer is in attendance there. Lawrence Chambers had been engaged by the Phosphate
Commission to clear the ship on its behalf. While the ship was lying at Port Kembla he arranged
with the captain and chief officer of the ship to buy the whole of the paint on the terms that it was to
remain on the ship to be used as required and to be paid for as used. The ship left Port Kembla with
the paint, some of which was afterwards used in Melbourne in painting the ship. The paint was
dutiable under the Customs Tariff, but no duty was paid on it nor was any entry made in respect of
it.

On these facts the respondent Company was charged with the following offences, namely, (1)
failing to enter the goods (sec. 68); (2) evading payment of duty (sec. 234); (3) interfering with
goods which were subject to the control of the Customs (sec. 33). The respondents Lawrence
Chambers and William Chambers were charged with aiding, abetting or being concerned in the
commission of the offences alleged to have been committed (sec. 236). All the offences charged
were alleged to have been committed with intent to defraud the revenue.

On the hearing of the informations no evidence was called for the respondents and the Magistrate
dismissed all the informations, being of opinion that the evidence given for the prosecution failed to
support, and in fact disproved, the averments of the informant. The question for us is whether his
determination was erroneous in law. The charges against respondent William Chambers are not now
pressed, and the case may be dealt with as if the charges were against the Company and Lawrence
Chambers alone.

In my opinion the evidence given for the prosecution was sufficient to establish the charge of failing
to enter the goods. Sec. 68 of the Act provides that all imported goods shall be entered either for
home consumption or for warehousing or for transhipment. The only question is whether these
goods were "imported," within the meaning of that section. According to the bill of lading the goods
were consigned to the Company at Sydney. The evidence shows that Lawrence Chambers on behalf
of the Company was willing and intended to have the goods landed at Port Kembla and to take
delivery of them there. The ship actually came into the port and remained there for some hours, and
the only reason alleged why the goods were not landed there was that Lawrence Chambers agreed
while the ship was in the port to sell them to the owner of the ship. Presumably on this agreement
being made the bill of lading was held by Lawrence Chambers as the person authorized by the
shipowners to act for them in clearing the ship. The Act contains no definition of the meaning of the
word "imported" but I think Mr. Mitchell was right in the view he put forward that goods are
imported whenever they are brought into port for the purpose of being discharged there. So far as
the ship is concerned the goods have at that time arrived at their destination, and their character as
goods imported into Australia cannot, I think, be affected by an agreement subsequently made under
which they are not in fact landed at the port at which the ship arrived. In the circumstances of this
case I think it is clear that the paint in question was imported when the ship arrived in Port Kembla
and that the obligation to make an entry arose at that time.

The second charge was that of evading payment of duty (sec. 234). The distinction in meaning
between the words "evade" and "avoid" is well established, and a charge of evading payment is not
made out by evidence which proves no more than that the person charged failed or omitted to pay
an amount payable by him. There was nothing to suggest that the agreement to sell the paint to the
ship was other than a genuine agreement, nor did the evidence tend to show that the respondents did
not honestly believe that in the circumstances it was not necessary to enter the goods or to pay duty
in respect of them, or that their intention in selling the goods was to escape payment of duty. In fact
the evidence proved no more than an omission to pay duty which was legally payable. In my
opinion the Magistrate was right in dismissing the informations founded on sec. 234.

With regard to the charge of interfering with goods which were under the control of the Customs, I
think the Magistrate's decision was right. Sec. 33 of the Act provides that no goods subject to the
control of the Customs shall be moved, altered or interfered with without authority. There was
clearly no evidence that the goods in question were moved or altered, but it is said that the
agreement made by Lawrence Chambers to sell them to the ship constituted an interference within
the meaning of the section. I am unable to accept this contention. I think the expression "interfered
with" in the context in which it is found should be construed as connoting some physical dealing
with the goods, something in the nature of a movement of the goods or an alteration of their
character.

For these reasons I am of the opinion that the Magistrate's determination on the information against
the Company and Lawrence Chambers founded on sec. 68 of the Act--failure to enter the goods --
was erroneous, but that his determinations on the other informations were correct.

Isaacs J.

This case comprises three appeals by Richard William Wilson, as Customs officer, from the
dismissal of informations, under the Customs Act 1901-1920, against three several defendants,
namely, Chambers & Co. Pty. Ltd., Lawrence Chambers and William Chambers. During the
argument it was seen that the facts did not support any charge against William Chambers, and the
appeal as to him was dismissed. The other appeals have now to be determined.

The charges laid against the Company were as follows:--(1) Under sec. 234 of the Act for evading
payment of duty in respect of certain goods, namely, enamel, varnish, lead and paint, imported into
the Commonwealth at Port Kembla on or about 7th September 1922; (2) under sec. 68 of the Act
for failing to enter the said goods, either for home consumption or for warehousing or for
transhipment; (3) under sec. 33 of the Act for interfering with the said goods as subject to the
control of the Customs. Similar charges were made against Lawrence Chambers. All the offences
are alleged to have been committed at Port Kembla, which is a very material circumstance. The
main facts are that the Company was agent in Australia of Hoyle & Co. of Newcastle-on-Tyne for
the sale of goods of the classes referred to. A consignment of those goods about 7¼ or 7½ tons in all
was sent by Hoyle & Co. to the Company deliverable at Sydney. The goods were carried in a ship
called the Nauru Chief, which, before calling at Sydney, called in at a small Customs port called
Port Kembla, with the goods on board. Lawrence Chambers, who was agent for, and who
represented, the Company, visited the ship while in Port Kembla. The ship needed painting, and
Lawrence Chambers on behalf of the Company agreed with the ship's officers--and his agreement
has since been affirmed and acted on by the Company--to sell all the goods in question to the ship,
the goods to remain on board and to be paid for as used by the ship. This arrangement being made,
the goods passed into ships' stores. Nothing was done at Port Kembla by way of unshipping the
goods or of using them. The Customs officer at Port Kembla allowed the ship to proceed to
Melbourne with ships' stores unsealed, a guarantee in the prescribed form being given. At
Melbourne some of the goods were used in painting the ship. No duty was paid. The Company has
since been paid by the shipowners for the goods. I now consider the charges against the Company in
order.

(1) Evading Payment of Duty.--The offence is constituted by sec. 234 (a): "No person shall evade
payment of any duty which is payable." The latter part of the paragraph requires that duty is actually
and presently payable; and this is the first inquiry. The foundation is naturally the Customs Tariff
which imposes the duties on "all goods dutiable ... imported into Australia," &c. "Dutiable goods"
by incorporation of the Customs Act include "all goods in respect of which any duty of Customs is
payable." By sec. 153 duties payable are Crown debts and instantly recoverable. The first essential
for this purpose is importation. Importation does not necessarily include landing the goods. They
may be transhipped direct from the ship in which they arrive into the ship or aircraft into which they
are to be transhipped, and still be "imported goods" (secs. 68 and 75 (b)). Sec. 68 says: "All
imported goods shall be entered either (a) for home consumption; or (b) for warehousing; or (c) for
transhipment." Consequently "imported goods" as there used is an expression not confined to goods
landed or even to goods to be consumed in Australia. On the other hand it does not include all goods
in fact arriving by ship in an Australian port. A vessel, say, with a cargo destined for New Zealand
may call in at Melbourne or Sydney and may continue her voyage without it being said that the
goods it carries are "imported goods" within the meaning of sec. 68. Both these extremes are
inconsistent with the working provisions of the Customs Act. In my opinion, having regard to the
various sections of the Act--and needless to say the question must be solved by reference to that
Act and not to other Acts--the expression "imported goods," in sec. 68, means goods which in fact
are brought from abroad into Australian territory, and in respect of which the carriage is ended or
its continuity in some way in fact broken. The underlying concept appears to me to be as follows:
Where, within our territory, some act takes place with regard to goods arriving from abroad,
whether in fact they are or are not dutiable or prohibited, which in the absence of some new or
further arrangement for carrying them away would make the place of arrival their destination and
would therefore result in the goods remaining in Australia, then they are "imported goods" and it is
the duty of the "owner" to comply with the provisions of sec. 68. I do not think a mere agreement of
sale between two merchants in Australia, even though the property passes, is sufficient in itself to
constitute importation. If such an agreement were made before the ship arrived in Australian waters,
it could not possibly operate as an importation. If afterwards the goods arrived and were allowed to
remain en route, for instance to New Zealand or in the other direction to India, with the actual
carriage undisturbed, I do not see how the position would be altered. But in this case there are
additional circumstances. The agreement was made with the shipowner; the delivery was
accelerated; not only the property, but the right to possession also, was transferred. The contract of
carriage was completely ended, and the shipowner's character in which he held the goods was
transformed from that of carrier to that of proprietor. What follows is important vis-à-vis the
Customs. The goods were, as it is found, taken into ships' stores and were allowed by arrangement,
constituted by permission of the Customs and guarantee to the Customs, to be taken on to
Melbourne as ships' stores. That involved the result that, not only was the character of the
shipowner's possession altered as between the parties, but the character of the goods themselves was
also altered as regards the Crown. What was the legal consequence of all this? In my opinion this
catena of circumstances eliminates, as unnecessary formalities, the manual delivery by shipowner to
consignee, and redelivery by consignee to shipowner. It also treats for Customs purposes those
formal processes as having for convenience been eliminated, but as having in substance taken place
and as having had real commercial effects. The goods only became "ships' stores" in Port Kembla,
and, in substance, that is where they were, by the catena of circumstances mentioned, treated by all
parties, including the Crown, as having been shipped as such. Otherwise, the Customs permission
and the guarantee to the Customs rested on no real transaction so far as these goods were concerned.
In the result, the goods were "imported goods" and were necessarily "imported" by the Company,
and prior in law to their conversion notionally into ships' stores. The goods should have been
entered by the Company under sec. 68, and as they were by the Company intended to be sold and
were in fact sold to the shipowner for use as ships' stores and so treated by all concerned, they
should, in my opinion, have been entered as for warehousing. My reason is that the operation, if
extended, connotes (1) importation into Australia by the Company, (2) possible but no necessary
consumption in Australia, (3) immediate delivery to the shipowner as ships' stores. I therefore
eliminate from the proper entries by the importer (a) home consumption and (b) transhipment. The
only appropriate notional entry is therefore "warehousing," for that is the only thing that could have
been done, had the notional formalities been actually performed.

Was there then an instant obligation to pay the duty? The matter depends upon a well-established
understanding as to warehousing. The Customs Act, in Part V., deals with the warehousing of goods.
Sec. 78 enacts "Dutiable goods may be warehoused in warehouses licensed by the Minister." Such
goods are ex necessitate imported and are within the taxing Act provision quoted. The duty is at
once a debt to the Crown. Hamel on the Laws of Customs, at p. 100, states the relevant law and
quotes the following authorities: Com. Dig. Debt, A. 9; Leaper v. Smith[1]; Anonymous[2]; Salter v.
Malapert[3]; Attorney-General v. Weeks[4], and Attorney-General v. Ansted[5]. In the lastmentioned
case Parke B., who was in accord with Lord Abinger C.B., referring to the Warehousing Act 3 & 4
Will. IV. c. 57, which is the prototype of Part V. of the Customs Act, in effect stated the law to be
that, apart from the warehousing provisions, the duty was payable, and that those provisions when
complied with suspended the Crown's remedy by giving time for payment until the happening of
events mentioned in those provisions for requiring actual payment. He also held that, where by the
importer's own fault those provisions were not complied with, the original liability stood and the
time for payment had arrived. The commercial necessities that led to the enactment of the
warehousing provisions, and that to some extent at least exist in Australia, are found stated in Sir
George Stephens' work on Commerce and Commercial Law (1853), at pp. 108 et seqq. The
statement is interesting as supporting practically the principles laid down by the abovementioned
authorities. Applying those principles, confirmed by sec. 153, to the present case, the time for
payment had arrived.

Did, then, the defendant evade payment? It depends on what is meant by the word "evade" in the
particular context. The word itself is not rigid. As was said by Lord Hobhouse in Simms v. Registrar
of Probates[6], "everybody agrees that the word is capable of being used in two senses: one which
suggests underhand dealing, and another which means nothing more than the intentional avoidance
of something disagreeable. Beyond this, nothing is to be found having much bearing on the
construction of the word, which depends entirely upon its use in the Colonial Acts." That is to say,
we start with the alternative possible meanings of the word itself and as to anything further we are
thrown upon the construction of the statute in hand. Before proceeding to construe the statute for the
purpose of ascertaining what precisely is there meant by the word "evade"--a process involving
important consequences both to the revenue and to the mercantile community--it is necessary to
understand properly the observations of Lord Hobhouse. The "something disagreeable" to which he
refers may or may not, so far as concerns the intrinsic meaning of the word "evade" apart from
context, be a legal obligation. Whether in a given statute it connotes guilt or innocence and in what
circumstances depends entirely on the true construction of the statute itself. Here the "disagreeable
thing" to be avoided is "payment." That is, the person "intentionally avoids payment" in fact of a
sum which in law is payable. But whether the "intention" extends so as to make belief in facts
constituting liability to pay, or, still further, belief in actual liability to pay, the criterion of the
offence is another question and a serious one both for Commonwealth and individual. It would be
serious for the Commonwealth, because ignorance of essential facts, by reason (say) of wilful
neglect or even unreasonable business carelessness or ignorance of actual liability, would exclude
liability for evasion because there would be no actual belief. The first alternative would be serious
for honest merchants because, even with full knowledge of the facts, there might be a genuine
dispute as to the law supported by strong legal opinion which, however, in the end might be held
erroneous. In such case, if mens rea be adopted as the test, it would exist, because, as the Privy
Council held in Bank of New South Wales v. Piper[7], "the absence of mens rea really consists in an
honest and reasonable belief entertained by the accused of the existence of facts which, if true,
would make the act charged against him innocent." Their Lordships went on to hold that the party
charged must be presumed to know the law whether he did so or not. (The italics are mine.) The
expression "honest and reasonable belief" indicates that facts of which a reasonable man in the given
situation would avail himself must be taken into account. That is, for the purposes of mens rea. And
it establishes that the law accepts in such cases the standard of reasonableness as a test of
culpability. If, therefore, sec. 234 (a) be construed so as to make every intentional avoidance of a
payment actually due an evasion where there is knowledge of the facts, actual or imputed,
constituting liability to pay, then there was undoubtedly a contravention of the paragraph in the
present case. That is seen at once by a relation of the salient facts. There was importation of all the
goods at Port Kembla. The "payment" was due there instanter. All the facts were known to the
respondents other than William which constituted in law the instant liability to payment of the duty.
The respondents (other than William) unquestionably determined not to pay any duty at Port
Kembla but to proceed as above stated. The arrangement included a guarantee. Even apart from the
special terms of that guarantee, what was actually done was to remove from Port Kembla without
payment of duty goods in respect of which duty was instantly payable and on which there existed by
statute a charge or security for the payment of the duty. The constitutive facts being known and the
law presumed to be known, what prevents contravention on the interpretation assumed? But the
actual arrangement makes the position more acute. It was the intention of the respondents that the
duties arising in law at Port Kembla should never be paid; and they never have been. The guarantee
was "to furnish a list of all dutiable stores consumed on the voyage, and to pay duty thereon at the
port of Melbourne." That is, if none of the goods were consumed on the voyage from Port Kembla
to Melbourne, there was to be no duty paid at all, and any duty paid was to be in respect of future
happenings, not of what had taken place at Port Kembla. If, therefore, "evasion" rests simply on
knowledge actual or constructive of facts creating liability to pay and on the intention to avoid the
payment legally required by reason of that liability, the respondents must be convicted. But in my
view of the statute that is not the legislative intention, an intention that would operate frequently to
the detriment of the revenue and frequently to the detriment of honest traders. The solution is
this:--We begin with the intrinsic neutral meaning of evade as intentional avoidance. Then, by a
process of elimination, we can see what the Legislature intended the word to connote. Being erected
into an offence by sec. 234 with a maximum penalty of £100, it is manifest that the evasion
contemplated is more than mere omission to pay instanter. And compare Ramsden v. Lupton[8]. On
the other hand, the evasion penalized by sec. 234 clearly does not connote intent to defraud the
revenue. That is shown by sec. 241, which doubles the maximum penalty where that intent is
charged and proved. The position so far is that "evasion" is more serious than mere omission to pay
and less serious than attempting to defraud the revenue. At this point one observation is material.
Defrauding the revenue is not confined to escaping payment for ever. Escaping for a time with an
intention to pay when convenient and in the meantime depriving the Customs of its security is
defrauding the revenue, though the moral tint is a shade lighter (see R. v. Naylor[9]). Now, what is
the evasion which the statute places intermediately between simple omission and fraud on the
revenue. Any trick or artifice or force which results in obtaining dutiable goods without payment of
duty is a fraud on the revenue, and is, therefore, outside simple "evasion." Bringing to the solution
what should in a doubtful case always be assumed, a presumption of just intention consistent with
safeguarding the Customs revenue, the test must be whether the Crown debtor has acted honestly
and reasonably in relation to his public obligations. It is the same test as the Privy Council has stated
with regard to mens rea. If, legally owing the duty, the importer has not merely omitted to pay, but
has omitted without any reasonable grounds for withholding payment, he has "evaded" payment. If,
however, he can show any reasonable excuse for omitting to pay, he does not evade payment. He
may genuinely and without negligence be unaware of the facts constituting liability; he may have
misunderstood a regulation or a law; he may, though perfectly cognizant of all necessary facts, be
strongly advised that either on construction or constitutionally the law does not reach him. Such a
man does not, in my opinion, "evade" payment. On the other hand, if his ignorance of facts arises
through his own unbusinesslike conduct, so as to be unreasonable in his case want of knowledge is
no reasonable excuse. That, as already shown, is not because of the absence of mens rea as
ordinarily understood. It is simply because what he ought to know in his situation when his public
obligations are in question, he is taken to know. But the only test of what he ought to know is what a
man in his position acting reasonably would know. Consequently, it all comes to a question of
honesty and reasonable conduct. The conclusion is that sec. 234 (a) is contravened when there is
intentional non-payment without honest and reasonable excuse of duty which is payable. Then, was
there an honest and reasonable excuse here? In my opinion there was. The arrangement made was
on the mutual basis that no duty should be paid at Port Kembla but that the guarantee arrangement
should stand. On that ground, on that only, do I think the charge should fail.
2. Failure to Enter.--For the reasons given, I am of opinion there was a contravention of sec. 68,
and the appeal as to this should succeed.

3. Interference.--With respect to the third charge based on sec. 33 there was, with one exception, no
physical act of any kind at Port Kembla which could be said to be an interference with the goods. in
sec. 33 is not satisfied by a mere mercantile contract. Contracts between merchants are not
prohibited by sec. 33: they do not interfere with goods; they merely affect the right of individuals to
interfere with the goods. The one exception referred to is the moving of the goods from Port
Kembla in the vessel. But that was done by permission, and there was no breach of sec. 33.

What I have said with regard to the Company applies equally to Lawrence Chambers, who by
reason of his agency for the Company came within the statutory definition of "owner" in respect of
the goods.

The appeals, respecting the Company and Lawrence Chambers, should, therefore, in my opinion, be
dismissed as to the charges under secs. 33 and 234, and allowed as to sec. 68.

Higgins J.

Nine informations under the Customs Act 1901-1923. The Company is charged with three offences;
and Lawrence Chambers (one of the principal shareholders) and William Chambers are each
charged under sec. 236 with being directly concerned in these offences. By consent, all the nine
informations were heard together. The Stipendiary Magistrate found that the Company was not
guilty of any of the offences charged against it, and that Lawrence and William Chambers were
therefore innocent. The informant has appealed to this High Court. During the argument before us,
however, it was conceded by counsel for the informant that the appeals as to William Chambers are
not pressed.

The case involves many details; but I do not think it necessary to linger over them. I propose to deal
at once with the three charges against the Company.

There is one charge that the Company did, in New South Wales on or about 7th September 1922,
fail to enter either for home consumption or for warehousing or for transhipment six cases of
enamel and varnish and 366 drums of lead and paint alleged to have been imported into the
Commonwealth at Port Kembla on the Nauru Chief. Under sec. 68 of the Act, "all imported goods
shall be entered either (a) for home consumption; or (b) for warehousing; or (c) for transhipment."

The facts are that the vessel Nauru Chief, containing the goods, entered the harbour of Port Kembla
about 6 a.m.; that these goods were consigned to the Chambers Company; that Lawrence Chambers
met the vessel at Port Kembla by the instructions of Mr. Vogil, Sydney manager for the owners of
the vessel, the British Phosphate Commission; that Lawrence Chambers on behalf of the Chambers
Company arranged with the captain and the chief officer of the vessel to keep the paint on board and
use it as required, and to supply a list of the paint used so as to enable the Chambers Company to
charge up the paint to the British Phosphate Commission; that the vessel left for Melbourne about
5.30 p.m. on the same day without entering the goods at all.

Now, the Chambers Company is not guilty of this offence charged under sec. 68 unless the goods
were "imported" goods. There is no definition of the words "import" or "importation" in the Act.
Several cases have been cited from the Courts of the United States as to the meaning in United
States Acts; but it is for us to find the meaning from the language of our own Act. The appropriate
definition found in the Oxford Dictionary for "import" is "to bring in or cause to be brought in
(goods or merchandise) from a foreign country, in international commerce"; but is it an essential
condition under our Act that the goods be landed before entry? Or that they be, at least, unshipped?
Sec. 49 with sec. 75 makes it clear that the due order of events contemplated is (1) entry, (2)
unshipping, (3) landing or transhipping; and therefore entry is obligatory before unshipping or
landing. Under sec. 31 all goods on any ship from parts beyond the seas are subject to the control of
the Customs whilst the ship is within the limits of any port in Australia; and under sec. 64 the
master, owner or pilot is under a duty, within one day after arrival at any port, to report the ship and
her cargo by delivering an inward manifest of goods for that port. Under sec. 74, (except as
prescribed) goods may be unshipped only pursuant to (1) a collector's permit or (2) an entry passed.
In the case of Algoma Central Railway Co. v. The King[10] Lord Macnaghten said that if the ship be
brought within the country (in that case Canada), no more is required for the meaning of imported.
The port is in the country. His Lordship was not referring, of course, to such exceptional cases as
that of wrecked ships, or even that of ships destined for other countries, but calling at an Australian
port en route. In my opinion, the position is the same under our Act; and these goods were
"imported" within the meaning of sec. 68. The view taken by the Magistrate was that the (alleged)
sale to the master of the ship relieved the Chambers Company of liability to enter the goods. I
cannot take that view; I think that the Chambers Company--the consignee--failed to enter these
goods, contrary to law, and that the dismissal of the charge was wrong. But there is no evidence
whatever that the failure was "with an intent to defraud the revenue" as alleged in the information;
this averment in the information is not even prima facie evidence of the intent (sec. 255 (4)). If the
Company be convicted, Lawrence Chambers must also be convicted as being directly concerned in
the offence (sec. 236).

Another charge against the Chambers Company is that it evaded at Port Kembla payment of duty
which was payable in respect of these goods. There is no doubt that the duty payable was not paid at
Port Kembla (though it was paid afterwards); but does the word "evade" connote no more than
failure to pay, in the words of sec. 234: "No person shall (a) evade payment of any duty which is
payable"? Where mere failure to perform an obligation is meant, the word "fail" is used (as in sec.
268); but the word "evade" seems to mean something more than "fail." According to the dictionary,
it means "to escape by contrivance or artifice from (attack, &c.); to avoid, save oneself from (a
threatened evil or inconvenience); to elude (a blow), avoid encountering (an obstacle)." According
to Simms v. Registrar of Probates[11], a case as to succession duty, the words used were "has
incurred or shall incur any debt with intent to evade the payment of duty hereunder"; and, as the
Judicial Committee said[12], "Everybody agrees that the word is capable of being used in two
senses: one which suggests underhand dealing, and another which means nothing more than the
intentional avoidance of something disagreeable." Both of these senses involve will, intention.

To say the least, "evade" would seem to connote the exercise of will in avoiding; whereas a mere
failure to pay may be by accident or mistake. Under sec. 241 a person may at the same time be
charged with an offence against this Act, and with an intent to defraud the revenue; and, if in
addition to such offence he is convicted of such intent, the maximum penalty shall be double that
otherwise provided. But this section does not show that the word "evade" must mean merely "fail";
for a person may "evade" the payment of duty by seizing from a vessel goods urgently wanted,
although he may show, by paying the duty, that he has no "intent to defraud the revenue." The
evidence rather points to an innocent mistake of the Chambers Company and of Lawrence
Chambers; and, in my opinion, the information in each case was rightly dismissed.

I cannot, however, accept the gloss on the section proposed by my brother Isaacs--that the words
"without reasonable excuse" are implied. Indeed, for my part, I think it dangerous to attempt to
frame a definition, or to interpose a formula between the section and the facts of each situation:
facts vary so infinitely.

Another charge is under sec. 33--that the Chambers Company did, without the authority of an
officer of Customs at Port Kembla, interfere with these goods which were subject to the control of
the Customs. All that the Chambers Company or Lawrence Chambers did was to make the
arrangement which I have stated with the master of the vessel--to keep the paint on board and to
use it as required, and to supply a list of the paint used. My opinion is that this does not constitute
an "interference" with the goods under sec. 33. The associated words are "moved altered or
interfered with"--"No goods subject to the control of the Customs shall be moved altered or
interfered with except by authority and in accordance with this Act." In my opinion, all the three
words refer to physical acts--physical moving, physical altering, physical interference. When
Lawrence Chambers made the arrangement, he did not even stipulate that the goods should be taken
out of Port Kembla; so far as the Chambers Company was concerned, it was immaterial whether the
master should take the vessel (with the goods) out of Port Kembla at any time or at all. This charge
was also, in my opinion, rightly dismissed--both as to the Chambers Company and Lawrence
Chambers.

Rich J.

I concur in the conclusions arrived at by the Court. I do not consider it expedient to attempt an
exhaustive definition of sec. 234 (a). The fact that the Customs officer at Port Kembla, after he had
secured a guarantee in the prescribed form, allowed the ship to sail for Melbourne with the ship's
stores unsealed, removes the case from the operation of the sub-section.

Starke J.

The defendant Chambers & Co. Pty. Ltd. was charged on information with three offences against
the Customs Act 1901-1923. One charged that the defendant did not, contrary to the provisions of
secs. 68 and 241 of the Act, enter goods imported by it into the Commonwealth, with intent to
defraud the revenue. The defendant purchased the goods in England and shipped them on board the
ship Nauru Chief, consigned to the defendant or its assigns at the Port of Sydney. The ship did not
put into the Port of Sydney but into Port Kembla, a port some distance south of Sydney. It did so for
the purpose of coaling; but it is clear on the evidence that the ship would not proceed to the port of
Sydney, that it intended to land the goods at Port Kembla, and that the consignees were prepared to
take delivery there. But before the goods were discharged an arrangement was made between the
consignees and the representatives of the ship, whereby the goods were taken over for the use of the
ship, and they were never landed.

Duties of Customs are imposed upon goods imported into Australia, but there is no definition in the
Act of the word "imported." They may be imported by means of a ship or aircraft or through the
post (cf. secs. 49 and 35). They may be brought within the territorial limits of Australia, and may
indeed be subject to Customs control, and yet not be "imported" in the fiscal sense of the term. Thus
goods shipped from England to New Zealand via Australia are not imported into Australia because
in the course of her voyage the ship with the goods on board comes within the territorial limits of
Australia for commercial purposes. Yet such goods would be subject to the control of the Customs
(Customs Act, sec. 31). Again, goods coming ashore from wrecks could hardly be classed as
imported goods, and the Customs Act has made special provisions to meet the case (vide secs. 65,
66, 67 and 148).

It cannot, in my opinion, be maintained that the mere act of bringing goods into port constitutes an
importation; though unexplained it may be evidence of the fact. If goods, however, are brought into
their port of destination for the purpose of being there discharged, the act of importation is
complete. On the other hand, the act of importation is not complete if a ship enter some port of call
with goods on board which is not the destined port of discharge for those goods. Actual landing is
not necessary, as was argued, to constitute an importation for fiscal purposes.

Now, in the present case the goods were not brought to their port of destination but to Port Kembla,
where the goods were to be landed with the assent of the consignees. That, in my opinion, was an
importation of the goods within the meaning of the Customs Act. It is clearly the duty of an "owner"
who imports goods into Australia to enter them at the Customs, and that term "owner" includes the
consignee of the goods (vide secs. 37 and 4, "Owner"). Consequently, in my opinion, the defendant
should have been convicted of the offence that it did not enter the goods, but there was no evidence
of any intent to defraud the revenue.

Another information charged that the defendant did, contrary to secs. 234 and 241 of the Customs
Act, evade payment of duty which was payable in respect of the goods with intent to defraud the
revenue. A duty was imposed on the goods mentioned in the information under the Customs Tariff
upon importation into Australia and that duty was payable, in this case, upon the arrival of the ship
in Port Kembla (Attorney-General v. Ansted[13]). But did the defendant evade payment of that
duty? Clearly, in my opinion, the word "evade" in the Act does not necessarily involve any device
or underhand dealing for the purpose of escaping duty; but on the other hand it involves something
more than a mere omission or neglect to pay the duty. It involves, in my opinion, the intentional
avoidance of payment in circumstances indicating to the party that he is or may be under some
obligation to pay duty. The circumstances may consist of knowledge, or neglect of available means
of knowledge, that the omission to pay is or may be in contravention of the Customs law. This, in
my opinion, was not proved. The defendant and its representative acted on an honest but mistaken
view that the arrangement with the ship and a guarantee to the Customs by the master thereof to
furnish a list of all dutiable stores consumed on the voyage to Melbourne, the next port of call, and
to pay duty thereon at that port fulfilled the obligations of the Customs law. Consequently this
information was rightly dismissed.

A third information charged that the defendant at Port Kembla, contrary to the provisions of the
Customs Act, sec. 33, interfered with certain goods subject to the control of the Customs, namely,
the goods already mentioned, with intent to defraud the revenue. The proof led was that the
defendant made the arrangement with the ship already mentioned. The section, however, points to
some physical interference with the goods, and not to some disposition of the goods leaving them
still subject to the control of the Customs; and the facts show that the goods were taken from Port
Kembla in the ship with the sanction of the Customs and under the guarantee aforesaid.
Consequently this information was rightly dismissed.

Three informations were also laid against Lawrence Chambers, based upon secs. 236 and 241 of the
Customs Act, charging that he was directly concerned in the offences charged against the Company.
Lawrence Chambers acted on behalf of the Company at Port Kembla, and the same results follow in
his case as in the case of the Company. The information that he was directly concerned in the
offence of the Company in failing to enter the goods must be supported, and the other informations
dismissed.
William Chambers was also charged on three informations in the same terms as in those laid against
Lawrence Chambers. William Chambers was not a member or officer of the Company, and took no
part in the acts proved against it. It was admitted, on the argument, that the informations laid against
him could not be supported on the evidence adduced, and they were therefore all rightly dismissed.

As to the informations against William Chambers:--Appeals dismissed. Appellant to pay costs in
Court of Petty Sessions and in High Court.

As to the informations against Lawrence Chambers:--Appeals in respect of informations charging
offences under secs. 33 and 234 of the Customs Act dismissed. Declare that the determination of the
Magistrate on the information charging the respondent with being directly concerned in the
commission of an offence under sec. 68 of that Act was erroneous in point of law and that the
respondent should have been convicted of being directly concerned in the offence committed by the
Company against that section. Remit the case to the Court of Petty Sessions to be dealt with in
accordance with this declaration.

As to the informations against Chambers & Co. Pty. Ltd.:--Appeals in respect of informations
charging offences under secs. 33 and 234 of the Customs Act dismissed: Declare that the
determination of the Magistrate on the information charging an offence against sec. 68 of the Act
was erroneous in point of law and that the respondent should have been convicted of failing to enter
the goods mentioned in the information but not with intent to defraud the revenue. Remit the case to
the Court of Petty Sessions to be dealt with in accordance with this declaration.

Solicitor for the appellant, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors for the respondents, Norton, Smith & Co.

[1] (1721) Bun. 79.

[2] (1606) Lane 15.

[3] (1617) 1 Roll. R. 383.

[4] (1726) Bun. 223.

[5] (1844) 12 M. & W. 520.

[6] (1900) A.C., at p. 334.

[7] (1897) A.C. 383, at pp. 389, 390.

[8] (1873) L.R. 9 Q.B. 17, at pp. 28, 30.

[9] (1865) L.R. 1 C.C.R. 4.

[10] (1903) A.C., at p. 481.

[11] (1900) A.C. 323.

[12] (1900) A.C., at p. 334.
[13] (1844) 12 M. & W. 520.

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