australian me 109

[JägerMarty]

I realise this aircraft has been in storage and with the AWM for many years, anyone have an idea of when the engine was last run?

[Mark_Pilkington]

I am confused.
Did the 109 belong to a free and private citizen of Australia?
Was it sold to a free and private citizen of Britain?
Then it wasn't allowed to be exported?
Just curious.
Chris...

Chris,

Australia has a moveable cultural heritage law that limits items of great significance to Australia being exported, and requiring things that "might" be of significance to Australia to apply for an export permit and be assessed for significance. It is similar to a private house being heritage registered by the National Trust or local/state government to limit it being knocked down and replaced/redeveloped - even if in private ownership.

So yes a privately owned historic aircraft sold to an overseas private owner may not be successfully exported, however the number of aircraft denied an export permit from Australia can be literally counted on the fingers of 1 hand.

A buyer should be able to guess the likely export permit outcome, and even could get some significance assessements done themselves to provide guidance before purchasing with the intent to export.


Clearly in this case the 109 was expected to be denied export so the purchaser simply attempted to smuggle it out without a valid declaration or export permit -breaking another export law to avoid being denied an export permit, and in this case had the 109 and a Mustang confiscated and forfeited.

You can privately own a car, but not drive legally without a licence, or over the speed limit, or on the wrong side of the road, governments pass laws to limit many private actions and transactions of the individual, in the interests of the wider population.

The US Government now severely limits the export of military hardware out of the USA, you can still buy amd own an F-111 cockpit in the USA, and I might be able to buy it off you, but I would have great difficulty in exporting it out of the USA regardless of where I wanted to ship it, and thats not anything to do with Australian law.

But that would be an equivalent example (for differing reasons) of a government controlling private exports of legally owned private property.

Australia is currently trying to loan 7 of its own retired RAAF F-111s and 4 F-111 cockpits to local museums, and has to get permission from the US government to do so.

regards

Mark Pilkington

Last edited by Mark_Pilkington on Sun Jun 24, 2012 2:24 am, edited 1 time in total.

[Mark_Pilkington]

I realise this aircraft has been in storage and with the AWM for many years, anyone have an idea of when the engine was last run?

I dont recall seeing any records/photos of it ever being run during its time in Australia, either during its war trophy delivery to Australia, or Syd Marshalls ownership and certainly not since its impounding and return to the AWM and current public display.

I suspect it may not have flown since its capture since it was not repainted in RAF "FE" markings.

regards

Mark Pilkington

[Leon Coburn]

One thing I failed to mention is that as far as I’m aware all paperwork was above board and the “aircraft parts” were going to be exported without any trouble, however there was a young flight instructor watching what he wrongly thought was an attempted smuggling operation, so he called customs and “dobbed” them in. The entire operation was “shut down” and everything was confiscated.

but you also seem to clearly indicate the export was intentionally flouting Australian Law

I don’t believe that’s what I said merely how you interpreted what I said. Up until that point the entire shipment was viewed as aircraft parts, rightly or wrongly, and all paperwork was in place, but lets not lose sight of what was happening here. This aircraft was going to be given on static display as a gesture to the German people to which it had far greater significance than Australia. That is still where all those involved believe the aircraft should be, not in Canberra.

You yourself admitted Mark……

While its not associated with a person or event in Australian history

followed immediately in the same sentence by

the 109 clearly was an object being used against Australian's in war

Now where is that bit written in the Act? The Australians that would have met a Bf-109 directly in it’s role as an escort fighter would have been flying RAF aircraft for the RAF not the Australian Defence Force as defined by the Act.

it again depends on the specifics of the objects links to Australia and the findings of an expert assessment

I guess therein lies part of the problem, who were these experts in 1979? Several Government consults testified against my father at both trials and “expert” was not a word that would have been used to describe them, “out of their depth” more likely. I would suggest the real experts were the people involved in the attempted export. I have heard it said that were they to try and export the same aircraft today it would be no problem. I have no idea if this is true or not?

Perhaps at the time Australia should have tried extraditing the principals back from overseas…………I hope next time they are!

Wow what a very sad statement to make. Who were they hurting? Do you think hanging from the ceiling of a War Museum in Germany is the wrong place for a Messerschmidt 109 to end up?

Did the 109 belong to a free and private citizen of Australia?
Was it sold to a free and private citizen of Britain?
Then it wasn't allowed to be exported?

The 109 was found in the back shed of a gentleman living near Bankstown Airport, original ownership is not known for certain but this gentleman was paid a sum of money by Doug Arnold, yes a private citizen of Britain, for ownership.


The truth is we will never know if the attempted export was illegal or not as the case never went to court in that context so we are left only with opinions and individuals interpretations of the Law of which nobody can be right, myself included.



Anyway I’m not here to argue points of a law that I’m not familiar with 30 odd years after the event, I merely wanted to clear a few misconceptions about what went on.

Regards,

Leon.

P.S

I realise this aircraft has been in storage and with the AWM for many years, anyone have an idea of when the engine was last run?

It was last run in 1979 and taxied around Bankstown Airport by my father Roy Coburn with the biggest grin his air-cooled teeth ever had

[DaveM2]

So I guess all 'war prizes' have no historical relevance to the country that they were shipped to according to you or Arnold? We better give our Zero back to Japan, and the NASM - well I would hate to pay that shipping bill!
We also have some 'rocks' thrown at us by the Germans-should we return them as well, we can export them disguised as gravel (I jest of course)
Arnold, as everyone knows, was a wheeler and dealer, there would have been no guarantee the aircraft (the 109 - not the 'P-51' that is) would have ended up in a German museum, infact IIRC one of the two he had (G-6 from Yugo and G-10 from the US) was supposed to go to a German museum...never happened.
Anyway, the outcome ended up being good for the 109, which has remained untouched, and Australia, who can boast one of the few Luftwaffe types with original camo ...pity about the 163 though!

Dave

[Mark_Pilkington]

One thing I failed to mention is that as far as I’m aware all paperwork was above board and the “aircraft parts” were going to be exported without any trouble, however there was a young flight instructor watching what he wrongly thought was an attempted smuggling operation, so he called customs and “dobbed” them in. The entire operation was “shut down” and everything was confiscated.

but you also seem to clearly indicate the export was intentionally flouting Australian Law

I don’t believe that’s what I said merely how you interpreted what I said. Up until that point the entire shipment was viewed as aircraft parts, rightly or wrongly, and all paperwork was in place, but lets not lose sight of what was happening here. This aircraft was going to be given on static display as a gesture to the German people to which it had far greater significance than Australia. That is still where all those involved believe the aircraft should be, not in Canberra.

You yourself admitted Mark……

While its not associated with a person or event in Australian history

followed immediately in the same sentence by

the 109 clearly was an object being used against Australian's in war

Now where is that bit written in the Act? The Australians that would have met a Bf-109 directly in it’s role as an escort fighter would have been flying RAF aircraft for the RAF not the Australian Defence Force as defined by the Act.

Anyway I’m not here to argue points of a law that I’m not familiar with 30 odd years after the event, I merely wanted to clear a few misconceptions about what went on.

Regards,

Leon.

Leon,

I dont think there is any need to argue any points of law, the law is quite clear & explicit in what is required and the punishments if not complied with, and the attempted export of the 109 broke them, which is why the 109 and Mustang were confiscated and forfeited by the owners and your father charged.

Your father was acquitted on appeal in relation to his involvement, thats all the High Court decision resolved. The aircraft were not returned to the owner because they were being illegally exported, the "paperwork" was not "above board" as clearly these aircraft parts did "not" have a valid export permit "as was and is" required under law, and the owner apparantly knew that having sought legal advice and intentionally chosen not to submit an export permit application - thats what this law is all about!

(c) any object of air transport, including:
(i) any lighter-than-air craft, including an airship; and
(ii) a glider, or kite, including a hang glider; and
(iii) any power driven aircraft; and
(iv) any equipment used, or intended for use, in aircraft manufacture or repair; and
(v) any aircraft communication and guidance system, or component of that kind of system; and
(vi) any aircraft instrument, engine, equipment, part or weapon; and(

As clearly shown in (i) and (vi) above exporting a complete aircraft or any aircraft part requires an export permit, and "if" the owner had a valid export permit "some local flying instructor calling in the plods "mistakenly" thinking it was an illegal export/smuggling attempt" would not have resulted in the aircraft being impounded and forfeited, or your father being charged or needing to fight all the way to the High Court to overturn that conviction.

Unlawful exports
(1) Where a person exports an Australian protected object otherwise than in accordance with a permit or certificate, the object is forfeited.

(2) Where a person attempts to export an Australian protected object otherwise than in accordance with a permit or certificate, the object is liable to forfeiture.

(3) A person is guilty of an offence if:
(a) the person exports, or attempts to export, an object; and


(3B) A person who is convicted of an offence against subsection (3) or (3A) is punishable by:
(a) if the person is an individual—a fine not exceeding 1,000 penalty units or imprisonment for a period not exceeding 5 years, or both; or

Clearly the punishments are serious, and the value of the forfeited aircraft was serious, this is not a simple case of "the local plods getting it wrong when a local flying instructor called wolf", it took a High Court acquittal to get your father off the hook, it wouldnt have had to go to the highest court in the land if it was all "a mistake". And the aircraft remained forfeited because a crime had been committed, even if "not" by your father.

Now where is that bit written in the Act? The Australians that would have met a Bf-109 directly in it’s role as an escort fighter would have been flying RAF aircraft for the RAF not the Australian Defence Force as defined by the Act.

I have posted extracts of the Act previously above in an earlier post in 2011 that you replied to, and my direct reply to you above, that makes it very clear location and geography has no impact. see 9.4 (a) (b) and (e) below.

I'm sure the lawyer who provided advice on the export of the 109 could read the act as well as I or anyone else can.


As to Australians flying RAF aircraft over Europe that has no impact on the Act as they were still Australians and most were enlisted and serving in the RAAF in the likes of the 460 , 463 and 467 Lancaster Sqns, 10 Sqn RAAF in Sunderlands and others in Spitfires or Beafighters etc

A total of 19 RAAF bomber, fighter, reconnaissance and other squadrons served initially in Britain, and/or with the Desert Air Force, in North Africa and the Mediterranean. About nine percent of the personnel who served under British RAF commands in Europe and the Mediterranean were RAAF personnel.

Clearly a German 109 attacking a RAAF crew in a RAAF 460 Squadron Lancaster would be an object being used against the Australian Defence Force overseas.

Its clear the owner understood the likelyhood the 109 might be assessed as being significant ("didnt trust the government" as you say) and decided to export the aircraft (or aircraft parts) without a "valid export permit", and got caught "red handed", and had the objects "confiscated" and "forfeited" under the law.

Because he didnt apply, and the aircraft was not assessed, we will never know if he would have succeeded in getting a valid export permit.

N0 - the object doesnt need to have been involved in War on Australian soil to be "significant to Australia" or covered by the act:


Quote:
9.4 In this Part:
Australian military history means the history of:
(a) wars, and operations or activities relating to warfare, in which Australians have been actively engaged; and
(b) any army, navy or air force unit in which Australians have taken part; and
(c) the Australian Defence Force; and
(d) operations, or other activities, conducted in Australia by any army, navy or air force personnel or unit of a country other than Australia; and
(e) objects used against the Australian Defence Force, whether in Australia or overseas.

Australia was at war with Germany, the RAAF was flying Lancaster missions in Europe and was facing such German aircraft in combat! as did Australians in RAF Fighter Command and Coastal Command. Only 2% of Australians serving in WW2 flew in Bomber Command, yet they represented 20% of Australian casualties, and the largest contribution of RAAF casualties.

Its why Avro Lancaster G for George has a pride of place within the AWM, yet it never flew in combat over Australia either (and was technically an RAF aircraft flown by Australians in an Australian Squadron, but it is clearly considered by most to be of great significance to Australia.

The 109 clearly has some significance to Australians under the act even if it didnt fight over Australian soil, your opinion might be different to mine, and to a formal assessor under the act, which is why the opinion of a formal assessor is what counts.

And no, simply because the owner "might have" been going to donate it to a German museum even if that might be considered a relevent outcome, it doesnt justify its export and exemption from Australian Law.

Your fathers involvement and subsequent acquittal on appeal by the High Court doesnt mean the whole export was "legal and above board", it only relates to his involvement and his responsibility in the owners attempt to illegally export the aircraft.

The truth is we will never know if the attempted export was illegal or not as the case never went to court in that context so we are left only with opinions and individuals interpretations of the Law of which nobody can be right, myself included.

Its clear the 109 and the Mustang were both confiscated and forfeited, and the owner was not cleared of any thing in the court case appeal involving your father, and did not have the aircraft returned to him.

I'm not aware if the owner seperately made appeals against the forfeiting to try and get the aircraft released to him, but if he did, he was clearly unsuccessful, and if he didnt, I suspect thats probably due to good legal advice on the likely outcome.

These two aircraft were not confiscated because they were judged to be significant to Australia, that was never tested, because the owner never sought a valid export permit.

They were simply confiscated because the owner had not sought a valid export permit, apparantly intentionally because of the expectation the 109 would be denied a permit, - whereas of course the mustang would have easily gained a permit had it been properly declared and applied for, as others had previously and as others have since.

Your father may have been innocently caught up in an illegal export attempt, and obviously was acquitted by the High Court on that finding, beyond that an attempt by others to break Australian law was thwarted and the objects confiscated. the Crime was against all Australians and simply just because an owner considers this particular object was not of great significance doesnt allow anyone to ignore Australian law and make those judgements themselves.

The law doesnt leave it to owners to make the call on what is significant and what isnt, and clearly when an owner attempts to export an aircraft or aircraft parts without a valid export permit they are breaking Australian Law and deserve the consequences.

If the law is not enforced, then such owners will simply try and export what ever they like, and on the basis they simply want it or think they have a "better home for it", and thats not how this law works.

The interesting point you make, and which really will be never answered, is that even if we have differing views on the significance of the 109 to Australia, I suspect we both agree the 109 is not as significant to Australia as Smithy's Fokker, or the Smith Brothers Vimy or even the G for George Lancaster.

It is quite possible an export application for the 109 might have succeeded then, or even now, as the Syd Marshall collection Japanese Oscar, found and brought home by Australian soldiers in the Pacific, (and lived in that same "shed" with the 109) "was" permitted to be exported from Australia, under this same law after being assessed and obtained a "valid export permit", and I personally consider it had far more significance to Australia than the 109.

However the point is, the law "was" broken in regards to the export paperwork of the 109,- and the Mustang, there was "no" valid export permit either applied for, or approved, so the law "was broken" and there is no point trying to white wash it or re-write history.

You are of course fully entitled to clear your fathers name on the basis of his acquittal.


Happy to leave it there but please dont simply re-state your opinions or interpretation of the law and ignore the direct quotes from the Act already provided.

As I said earlier, we are all entitled to our opinions on the significance of the 109 to Australia, but the law is pretty explicit and it was clearly broken in this attempted export.

regards

Mark Pilkington

Last edited by Mark_Pilkington on Sun Jun 24, 2012 6:48 am, edited 3 times in total.

[oz rb fan]

if i recall there was an application in Britain for a registration to fly this particular bf109(not sure where i read it but almost certain it's was in the aviation press(g-smit )
and it seems they held onto the hope that they would get it as it wasn't cancelled till 1997.
http://www.caa.co.uk/application.aspx?c ... gmark=SMIT

Last edited by oz rb fan on Sun Jun 24, 2012 6:48 am, edited 1 time in total.

[CDF]

if i recall there was an application in Britain for a registration to fly this particular bf109(not sure where i read it but almost certain it's was in the aviation press(g-ustv if i recall)

"Black Six" was G-USTV not the Bankstown 109

[oz rb fan]

if i recall there was an application in Britain for a registration to fly this particular bf109(not sure where i read it but almost certain it's was in the aviation press(g-ustv if i recall)

"Black Six" was G-USTV not the Bankstown 109

yep i just checked and fixed it...well that one should have been here as well ..captured and flown by 3sqn raaf desert airforce

[Mark_Pilkington]

if i recall there was an application in Britain for a registration to fly this particular bf109(not sure where i read it but almost certain it's was in the aviation press(g-smit )
and it seems they held onto the hope that they would get it as it wasn't cancelled till 1997.
http://www.caa.co.uk/application.aspx?c ... gmark=SMIT

I dont think the belated cancellation of a reserved marking means much at all, but yes it apparantly was G-SMIT.


http://www.australianflying.com.au/news ... collection

regards

Mark Pilkington

[Leon Coburn]

Just quickly.....

You are of course fully entitled to clear your fathers name on the basis of his acquittal

He shouldn't even have been arrested let alone prosecuted and it took him years to clear his name at much cost and great inconvenience. If they got that so terribly wrong I doubt they were particularly on the ball where the rest of it was concerned.

However the point is, the law "was" broken in regards to the export paperwork of the 109,- and the Mustang, there was "no" valid export permit either applied for, or approved, so the law "was broken" and there is no point trying to white wash it or re-write history

As none of the real players were prosecuted so therefore never had their day in court it can only be your opinion that the law "was" broken based on your interpretation nothing more. There certainly was an export permit for "aircraft parts" as far as I'm aware. Considering these aircraft were in pieces it is at least possible to think that an expensive lawyer would have been able to argue that point, just possible. We've certainly seem them successfully argue stranger things. Isn't everybody innocent until PROVEN guilty? I think we all agree that the 109's "Australian military history" could certainly be argued both ways so it is possible that it would have been granted an export permit on its own merit but we'll never know nor can we know their motivation for not applying for one.

Nothing can be gained by questioning Mr Arnolds character and his intentions after exporting the 109 so let's not even go there.

I hope I'm not simply "re-stating my opinions".

[Mark_Pilkington]

Leon,

you are of course welcome to your views and opinions, but on the legality its not simply a matter of opinions, the aircraft were clearly confiscated and forfeited and the owner did not successfully overturn that situation - a strange outcome if he was innocent and nothing had been done wrong isnt it?, why wouldn't he contest it, and win?

(or did he, and lost?)

By the way here's apparantly the Australian Customs view of the story as accessible and quoted from the web. (Customs enforce this law and would have been the prosecuting agency - I'm sure they would not be printing something without a legal review to do so based on the facts.)

http://www.pprune.org/dg-p-general-avia ... rmany.html

edit, heres the article still online on the Australian Government Customs website as printed in their own publication at the time.

http://www.customs.gov.au/webdata/miniS ... ol4no2.pdf

JOURNAL OF THE AUSTRALIAN CUSTOMS SERVICE VOLUME 4 No 2 OCTOBER 2001 31

The actions, in 1979, of Sydney Customs officers stopped the illegal export of a World War
II German fighter plane, the Messerschmitt Bf 109.

On its arrival in Australia, the Bf 109 was accessioned by the Australian War Memorial (AWM), but the plane remained in its crates at No. 1 Aircraft depot, Laverton, Victoria, and then Tocumwal, NSW, until it was relocated to the completed War Memorial store at Duntroon, Canberra, in 1955. The Bf 109 stayed packed away at Duntroon until 1963 when the AWM Board of Trustees gave permission for the Bf 109 to be sold to a Mr B. Wetless, of Illawarra Flying School, for 250 pounds.

Finally, in February 1964, the Bf 109 went on display, but not until another change of ownership occurred. Mr Sid Marshall, of Marshall Airways, bought the plane from Mr etless. Mr Marshall hung the plane in his hangar at Bankstown.

In 1979, some years after the death of Mr Marshall, the Bf 109 came to the attention of a British collector who sought to export the aircraft to Britain. It was at this stage of the plane’s journey that Customs officers became involved.

An export permit for the Bf 109 was denied due the rarity and historical significance of the plane.

Customs officers had been alerted to the movements of the plane and placed the Bankstown Airport on 24-hour surveillance for several weeks before the plane was packed in air cargo crates and prepared for export.

On 3 December 1979, Customs officers opened the crates to reveal the Messerchmitt in pieces without an export permit. The crates were seized by the Commonwealth and placed in storage at an Air Force base at Regents Park, NSW, while legal proceedings were undertaken.

The case was eventually settled in 1987 when solicitors acting for the British collector filed a notice of discontinuance, with each side paying its own costs and the verdict for Customs.

Vintage aircraft enthusiasts around the country were divided as to who should be given the seized plane, and whether it should be kept in Australia. Questions were asked in Parliament on a regular basis as progress of the investigation, as allegations of a deal to swap the Messerschmitt for a less significant aircraft were made.

After long legal proceedings, Customs won possession of the plane and handed it back to the AWM in 1987. Since then, the Messerschmitt has remained in parts in a storage centre in Canberra. Curators will need to carefully remove some paint from the propeller and wings before the plane can be fully reassembled.

“Had it not been for the diligence of Customs officers, Australia would have lost one of its rarest – irreplaceable – aircraft specimens,” the Aircraft magazine reported in 1980.
The Australian War Memorial values this plane as part of its collection and is looking forward to resurrecting it so that it can take its place on display in the newly built ANZAC Anzac hall at the Australian War Memorial for all to observe and understand its significance in history.

I cant confirm the above account is accurate, but if as you say this case went to the High Court for your father to be acquitted and have a previous conviction overturned then surely it did go to court? and although thats not mentioned, the Customs article above mentions the owner discontinuing and settling in Customs favour, someone had their day in court didnt they? and the owner didnt appear to win? as the aircraft remained confiscated and forfeited, despite apparant attempts to also swap the aircraft for a less significant type?

By the way heres some parliament hansard that covers the same event:

(Question No. 331)

Mr Les Johnson asked the Minister for Business and Consumer Affairs, upon notice, on 4 December 1980:

(1) Did Bureau of Customs Officers keep Mr Douglas Arnold of Blackbushe Air Service, Blackbushe Airport, Camberley, Surrey, UK, under surveillance in Australia on or about 29 November 1979.

(2) If so, did the Customs officers see Mr Arnold supervise or be present at the disassembly of an historic Messerschmidt 109.

(3) Was this the same Messerschmidt 109 for which an export licence has not been issued and which was seized by Bureau of Customs Officers when it was discovered in a container which held a Mustang aircraft.

(4) Did the Bureau of Customs make any attempt to question or apprehend Mr Arnold or the responsible personnel of the exporters, Fawcett Aviation; if so, what action was taken.

(5) Did the then Minister for Business and Consumer Affairs, on or about February 1980, personally intervene and take charge of the matters relating to the investigation and possible legal action which could be taken against the parties involved in the unauthorised export of the Messerschmidt.

(6) What subsequent action (a) was taken or (b) is to be taken.


Mr Moore —The answer to the honourable member's question is as follows:

Prosecution action is being taken against those involved in the alleged attempt to export the aircraft illegally. It is, therefore, inappropriate for me to comment on these matters.

http://parlinfo.aph.gov.au/parlInfo/sea ... %2F0027%22

The Minister considered someone was being prosecuted?, and I thought you commenced this debate confirming your father had been arrested, found guilty in the first trial and had his conviction overturned in the High Court?

The only person arrested was my father even though he was employed only to see that the Bf-109 was correctly dismantled and put into the container while not involved in the attempted export whatsoever. He was found guilty of smuggling at the first trial and faced 8 years in prison suspended on appeal to the High Court where he was found not guilty with the apologies of the court. Thankfully all his legal costs were covered personally by Mr Arnold.

I'm sure the High Court proceedings you refer to are also available somewhere to clarify its findings and rulings, but the simple fact is that the overseas owner wouldnt have had them forfeited and been unsuccessful in getting them back if "nothing wrong" had occurred, or a simple "mistaken accusation" of illegal export had been made, to suggest otherwise is re-writing history, and certainly at odds with the Customs account above?

I also note there is no mention of "a flying instructor mistakenly" reporting the export?, and there is suggestion of a previous export permit being denied, and of the activities being placed under 24 hour customs surveillance, hardly some plods simply responding to a "mistaken cry of wolf by a flying Instructor"?

regards

Mark Pilkington

Last edited by Mark_Pilkington on Sun Jun 24, 2012 8:22 am, edited 1 time in total.

[Leon Coburn]

Thanks for that.

It is my understanding that there was an export permit possibly under the title of "scrap and various aircraft parts". Would this not have had to be approved? The flight instructor, from memory, told customs they were trying to smuggle the aircraft out, while the dismantling took place in full view, hardly a clandestine operation. Had he not have done this I believe the entire shipment would have left Australia without objection. It is also my understanding that Mr Arnold put the entire affair in the "too hard" basket which should not be construed as an admission of guilt.

I think one thing of note is that in the entire time the War Memorial owned the aircraft at no stage did they ever attempt to put it on display. I think they may have even sold it to Brian Wetless as scrap which makes me think the items for export were listed as "scrap and various aircraft parts". As I said earlier when it was sold to Mr Arnold it was living in a back yard shed.

My father certainly was found guilty and later acquitted. I am trying to find any online references to it

Regards,

Leon.

[Mark_Pilkington]

Thanks for that.

It is my understanding that there was an export permit possibly under the title of "scrap and various aircraft parts". Would this not have had to be approved?

The Customs article above clearly states otherwise, no export permit was approved!

In 1979, some years after the death of Mr Marshall, the Bf 109 came to the attention of a British collector who sought to export the aircraft to Britain. It was at this stage of the plane’s journey that Customs officers became involved.

An export permit for the Bf 109 was denied due the rarity and historical significance of the plane.

The flight instructor, from memory, told customs they were trying to smuggle the aircraft out, while the dismantling took place in full view, hardly a clandestine operation. Had he not have done this I believe the entire shipment would have left Australia without objection. It is also my understanding that Mr Arnold put the entire affair in the "too hard" basket which should not be construed as an admission of guilt.

Yes - basically what your saying is that as long as no one tipped off customs it would have happily left Australia

- that hardly makes it legal.

Perhaps someone tipped customs off as to what was going on, but it clearly was under survelliance for some time and "wasnt" a case of the plods rushing down due to a "mistaken claim of smuggling".

Customs officers had been alerted to the movements of the plane and placed the Bankstown Airport on 24-hour surveillance for several weeks before the plane was packed in air cargo crates and prepared for export.

The customs article above clearly states the export attempt was illegal because there was no valid export permit and legal proceedings occured.

On 3 December 1979, Customs officers opened the crates to reveal the Messerchmitt in pieces without an export permit. The crates were seized by the Commonwealth and placed in storage at an Air Force base at Regents Park, NSW, while legal proceedings were undertaken.

Mr Arnold does not need to admit guilt to have been penalised for committing an offence under the act! the aircraft were confiscated and forfeited, that doesnt happen unless an offence has occured, the owner was unsuccessful in trying to get them back because they were legally and successfully forfeited. - read the customs article.

The courts and prisons have always been full of people who did not admit their guilt, however that doesnt mean there wasnt enough evidence for the courts to find them guilty, and for them to be punished/penalised.

The case was eventually settled in 1987 when solicitors acting for the British collector filed a notice of discontinuance, with each side paying its own costs and the verdict for Customs.

You cant settle a case and discontinue it, unless its before the courts, verdicts are made by courts, it seems Mr Arnold had his day in court - and lost.

After long legal proceedings, Customs won possession of the plane and handed it back to the AWM in 1987

If there "was" a valid export permit, then the aircraft would not have been confiscated and forfeited, and a simple court proceedings would have easily had them returned if a "mistaken" report over "smuggling" had been made.

I think one thing of note is that in the entire time the War Memorial owned the aircraft at no stage did they ever attempt to put it on display. I think they may have even sold it to Brian Wetless as scrap which makes me think the items for export were listed as "scrap and various aircraft parts". As I said earlier when it was sold to Mr Arnold it was living in a back yard shed.

The strategy of listing it as scrap was used to export a spitfire from the same Syd Marshall collection, this law was written specifically because of that incident and to close any such loop hole, obviously the legal advice given to the owner was based on that previous episode, but it doesnt matter what it was listed as - the law requires a "valid export permit" and it didnt have one - read the customs article.

On 3 December 1979, Customs officers opened the crates to reveal the Messerchmitt in pieces without an export permit. The crates were seized by the Commonwealth and placed in storage at an Air Force base at Regents Park, NSW, while legal proceedings were undertaken.

No valid export permit = aircraft confiscated and forfeited
- resulting court case results in verdict for customs and customs being awarded possession of the aircraft = found guilty in a court of law

- end of story - no need to white wash or re-write history

My father certainly was found guilty and later acquitted. I am trying to find any online references to it

Regards,

Leon.

Your father (apparantly and according to you? as he doesnt get mentioned in the customs article) had been charged and found guilty of an offence in an Australian court of law, a conviction later overturned on appeal at the High Court - one doesnt get found guilty of being involved in an illegal export if there was no evidence that the export was illegal.


A lower court doesnt convict on absolutely no evidence and simply a "mistaken report of smuggling", an Australian law agency such as Customs would not be legally able to make the statements above and place them for public access if it wasnt true.

Export items dont get confiscated and forfeited, if there was no evidence that the export was illegal, and then following court proceedings "still not get returned" to the owner, and the owner doesnt settle in favour of customs, unless the evidence was "strong enough" to ensure the conviction "could not be" overturned.

Your fathers acquittal will relate to the charges against him, he wasnt the owner and so I assume being acquitted simply removed him from being held responsible for what happened, not the fact that an attempt to illegally export the aircraft had occured.

Although he is not mentioned in the customs article, it is quite explicit that:

-A previous export permit was denied.
- A valid export permit did not exist.
-An attempt to illegally export the aircraft without an export permit occured.
- The aircraft were confiscated and forfeited under the Act.
- (Court) Proceedings occured and attempts by the owner to litigate for their return failed and he settled the matter in favour of customs.

Unless you actually have or find court transcripts and decisions/ findings that counter those clear and public statements by a law agency of the Australian Government then I think its best to leave "guestimations" and "opinions" off the table, and to stop trying to white wash what occured or re-write history.

regards

Mark Pilkington

[Leon Coburn]

......and then it hit me........Mark Pilkington you have no first hand knowledge of this event whatsoever do you? You only know what you have read or have been told by others that were not there either. You can cut and paste the Act as often as you like but you still know nothing about what really went on do you? I am not pleading innocence on behalf of Mr Arnold far from it. The question he and my father had was regarding the "significance to Australias War history" that this particular 109 held. Their belief is it was very little as an individual aircraft. The customs article does not tell the entire story.

I didn't want to write things according to my sketchy memory but your condescending tone has left me no choice.

Your father (apparantly and according to you?

Really? Nice and condescending. Have you found any other name that was prosecuted? Or any name at all? Am I making it up? How dare you. His name was Roy Coburn and he was paid by Doug Arnold in 1979 to prepare the 109 for export, that is a matter of record not opinion. My father had professional qualifications in this field, what do you have Mark?

I am trying to be as brief as possible but please understand that there never was an export permit for said item as an "aircraft" but IIRC there was one for that same aircraft as a piece of "scrap" along with other "aircraft parts". How was it going to be exported without any permit? Carry on baggage? The "aircraft" was sold by the AWM to Brian Wetless years earlier as "scrap". The AWM are the people who defined it as "scrap" not Brian or Doug Arnold or my father but the very people whose job it was to look after this "Australian military history" which they had never displayed to the Australian people ever. You keeping up? Ever ever ever ever displayed. Can you see why someone may want to bypass the system? Because it wasn't working.

It is my understanding that after the application to export the 109 as an "aircraft" was denied they then attempted to export it as "scrap" which is exactly what the AWM were happy to call it when they sold it to Mr Wetless (lovely man was Brian), an export permit for "scrap" was obtained and the Bf-109 was a part of this.

Ever heard of a loophole Mark? Sometimes that is how people get things done. Your opinion of any violation of the "Act" is exactly that........opinion. The "fact" is that were it not for Mr Arnolds attempt at exporting the 109 it would have seen out it's days in that back shed without anybody even knowing about its existence, including you, just like it had been when the AWM owned it.

stop trying to white wash what occured or re-write history

It seems to me Mark that you really need a lesson in history as you clearly don't know what actually went on. You have made it clear that your view revolves around the Act and your "interpreted" violations of it but, that doesn't mean anything really outside of a court of law. Mr Arnold never appeared in his own defense so of course all findings were to go against him but please be clear, I am not stating that he did not break any laws, merely that he was never convicted. My opinion? Yes he probably is guilty of breaking a law but only probably. It is people like Mr Arnold that get these sort of wonderful aircraft out of storage for no personal financial gain (unsubstantiated opinions aside) how can that be a bad thing?

Please don't just cut and paste the Act again.

Have a nice day.

Regards,

Leon.