Motueka man's tonnes of tobacco on hold while case rolls on
The Customs Service has been making its case to overturn a court decision forcing it to give back nearly five tonnes of tobacco it seized from a grower in Motueka.
Laurie Jury's crop of 4.8 tonnes was seized in 2010. Late last year he won a High Court judgment that it should be returned to him, but an appeal was filed so he still does not have it back.
The case involves whether the Crown can successfully prove that Jury was growing the crop to be used in illegal manufacturing, and to what standard that should be proved.
It is not illegal to grow, dry and store tobacco, but it cannot be processed and made into cigarettes without authorisation.
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Any goods used, or intended to be used, for unauthorised manufacture of goods on which duty should be paid should be forfeited to the Crown.
Jury, who used to be a smoker, has denied having an intention, or knowledge of anyone intending, to use his tobacco for manufacture.
If his quantity of tobacco was made into cigarettes, about $3.34 million duty should be paid. Jury's lawyer said he would not have made millions, because nearly all of it would have been payable in excise duty.
Jury was in the public gallery of the Court of Appeal in Wellington on Tuesday to hear the Customs Service argue that the High Court decision had been wrong.
Customs' lawyer Alan Goosen said the High Court judge's decision significantly changed the test the Customs Appeal Authority had been applying.
The High Court was wrong to find Customs had to prove Jury's intention to a very high standard.
Goosen said it should have been for Jury to prove there was no reasonable grounds for the tobacco to be forfeited.
Once Jury sold his tobacco to strangers, it was not good enough for him to say, "I don't know what they're going to do with it," Goosen said.
But Jury's lawyer, Peter McRae said, the High Court had decided Jury's intention had not been proved, whatever standard was applied.
It was correct and inevitable that the High Court should have allowed Jury's appeal, he said.
The High Court judge found that all that had been proved was that Jury had tobacco and hoped at some time to be able to sell it.
McRae said there was nothing to show Jury intended the tobacco to be used for illegal manufacture.
The three Court of Appeal judges reserved their decision.