Baxter and Ah Way [1909] HCA 21

Baxter and Ah Way [1909] HCA 21

Section 255 of the Customs Act 1901 places the burden of disproving an allegation of a customs offence on the defendant, and the term 'averment' as used in the section covers the essential elements of the offence, not merely technical averments. The evidence, in the absence of proof to the contrary by the defendant, is sufficient to support a finding of guilt.

Parties
Informant: Baxter; Defendant: Ah Way; Defendant: Merchant
Jurisdiction
Australia
Judgment Date
29 April 1909
Procedural Posture
Information for Penalty Under Customs Act 1901 / Judgment After Hearing and Reservation of Question of Law to the Full Court
Outcome
Judgment for informant; penalty imposed subject to reserved constitutional point.
Legal Topics
Burden of Proof, Averment Provisions, Importation of Prohibited Goods, Constitutional Validity of Proclamation
Customs Law Criminal Law Statutory Interpretation Burden of Proof Averment Provisions Importation of Prohibited Goods Constitutional Validity of Proclamation

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Parties

Baxter

Informant

Ah Way

Defendant

Merchant

Defendant

Procedural Posture

Information for Penalty Under Customs Act 1901 / Judgment After Hearing and Reservation of Question of Law to the Full Court

Legal Issues

  1. 1 Whether sec. 255 of the Customs Act 1901 places the burden of proof on the defendant in customs prosecutions regarding averments of the charge
  2. 2 Whether the proclamation prohibiting importation of opium suitable for smoking was valid

Ratio Decidendi

Section 255 of the Customs Act 1901 places the burden of disproving an allegation of a customs offence on the defendant, and the term 'averment' as used in the section covers the essential elements of the offence, not merely technical averments. The evidence, in the absence of proof to the contrary by the defendant, is sufficient to support a finding of guilt.

Court Disposition

Judgment for informant; penalty imposed subject to reserved constitutional point.

Orders

  • Penalty fixed at £500 against Ah Way and £50 against Merchant, subject to security for payment under sec. 258 of the Customs Act 1901
  • Liberty to apply reserved following High Court's decision on the constitutional question