On 30 December 1912 the S.S. Empire was at Cairns in the State of Queensland. Mr A., an officer of Customs, was, according to his report, on the wharf doing preven-tive work. He noticed a Chinaman, B.C. coming ashore from the vessel. He accosted B.C., suspecting he had opium in his possession, and asked him what he had under his coat. B.C. would not stop, and made no reply, but continued to walk on. A. walked alongside him, trying to persuade him to open his coat, when three constables dressed in plain clothes came up from behind A. The police said nothing to A. but pulled B.C.'s coat open and felt what he had concealed in his belt, and being satisfied took him away. A. said to Constable D.\ 'I knew he had it. You had better take charge of him'.

The police did not charge B.C. with an offence against the Customs Act, but charged him with being in the unlawful possession of opium under State law. The Sub-Collector of Customs at Cairns stated in a telegram that the Police Inspector declined to charge B.C. under the Customs Act and declined to allow the Sub-Collector to examine the tins.

A newspaper report of the police prosecution is as follows:

Yesterday morning at the Cairns Police Court, before Mr P. G. Grant, P.M., a Chinaman named B.C. was placed in the dock on a charge⁽¹⁾ that he 'not being a medical practitioner, a wholesale dealer in drugs, or a pharmaceutical chemist, was found travel-ling in unlawful possession of opium'.

Defendant shook his head when the charge was read out to him. Sergeant Hawkes: He says he does not understand English. We have an interpreter here.

Mr Ket was then sworn in as interpreter.

The charge was then explained to defendant through the interpreter, and he pleaded guilty to it.

Sergeant Hawkes: The police obtained reliable information yesterday the accused was leaving the steamer Empire with opium, and the police are informed that this is the third time on which he left the steamer. Constable D. watched defendant, and saw him come away from the boat. He noticed that his belt looked rather bulky, and on making an exam-ination he found this opium.

The P.M.: All I can say is that there is plenty of it in the town.

Sergeant Hawkes: If the Customs officials had happened to discover him it would be a matter of imprisonment without any fine under their Act.

The P.M.: This is the first time defendant has been before me, and I will inflict a fine of <£ 30, in default three months' imprisonment in Cairns Gaol.

Sergeant Hawkes: I ask that the opium discovered be forfeited.

The P.M.: Yes.

Continuing, the P.M. said he noticed by that morning's Post the Government of China was fining the Chinese Customs for any slip that occurred. Sergeant Hawkes: Yes, I saw that.

The papers have been referred by the Comptroller-General of Customs to me with a request that representations be made through the Prime Minister to the State Prem-ier in relation to the case.

The case of R. v. Sutton 5 C.L.R. 789 shows clearly that, in all matters relating to the Customs, the Commonwealth law is paramount and extends even to bind the State Governments.

The facts in relation to B.C.'s case raise a clear presumption that the goods were imported goods and that the offence committed by B.C. was primarily an offence against the Commonwealth law.

The sections of the Customs Act which govern the matter are sections 30, 33, 203, 209, 210, 229, 233 and 233B.

Under these sections the goods, being imported goods, were at the time of seizure subject to the control of the Customs, and moreover being prohibited imports were for-feited to the Crown and thus were the property of the Commonwealth.

I am of opinion that the police acted wrongly in failing to deliver the seized goods to the Sub-Collector of Customs at the Customs House as required by section 209 of the Customs Act.

I am of opinion also that the Court was wrong in ordering the forfeiture of the goods in a proceeding before it under State law.

The police officers who acted in seizing the goods have probably laid themselves open to the liability of being prosecuted for a breach of duty in not delivering the goods to the Customs.

It is clear that the proper course for the police was to have delivered the goods to the Customs House and that the appropriate charge on which they ought to have proceeded was under the Commonwealth law.

Probably the police were not fully aware of their powers and duties under the Cus-toms Act, and as they may render valuable aid to officers in preventing smuggling and unlawful importation especially at outside ports, it might be desirable to request the

State Governments generally to bring sections 203, 209, 233 and 233B specially under the notice of the police and also the fact that in all matters relating to the Customs the Commonwealth law is the paramount law.

[Vol. 11, p. 89]

(1)Under Section 21 of the Aboriginals' Protection and Restriction of the sale of opium Acts 1897 to 1901(Qld).