Commissioner of Taxation v Esho & Anor [2003] NSWSC 410

Commissioner of Taxation v Esho & Anor [2003] NSWSC 410

The Magistrate erred in treating the sufficiency of the averment as a matter of law rather than fact, and in concluding that the averment was insufficient in law to prove the essential element (manufacture in Australia). The proper approach is to treat the averment as prima facie evidence and then consider, on the whole of the evidence, whether the offence is proved beyond reasonable doubt. As the Magistrate misstated the test, the decision was set aside and the matter remitted for determination according to law.

Parties
Plaintiff: Commissioner of Taxation; First Defendant: Francois Esho; Second Defendant: Riselite Pty Limited
Jurisdiction
Australia
Judgment Date
20 May 2003
Procedural Posture
Appeal / Judgment on Appeal From Local Court Magistrate's Decision
Outcome
Appeal upheld. Magistrate's decision set aside. Matter remitted to Local Court for redetermination. Defendant to pay plaintiff's costs.
Legal Topics
Excise Offences, Averments, Proof Beyond Reasonable Doubt, Statutory Presumptions in Criminal Law
Criminal Law Revenue Law Excise Offences Averments Proof Beyond Reasonable Doubt Statutory Presumptions in Criminal Law

Case Brief

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Parties

Commissioner of Taxation

Plaintiff

Francois Esho

First Defendant

Riselite Pty Limited

Second Defendant

Procedural Posture

Appeal / Judgment on Appeal From Local Court Magistrate's Decision

Legal Issues

  1. 1 Whether averments under the Excise Act are sufficient at law to prove ingredients of an offence beyond reasonable doubt
  2. 2 Whether the Magistrate erred in finding the averment insufficient in law to sustain a conviction

Ratio Decidendi

The Magistrate erred in treating the sufficiency of the averment as a matter of law rather than fact, and in concluding that the averment was insufficient in law to prove the essential element (manufacture in Australia). The proper approach is to treat the averment as prima facie evidence and then consider, on the whole of the evidence, whether the offence is proved beyond reasonable doubt. As the Magistrate misstated the test, the decision was set aside and the matter remitted for determination according to law.

Court Disposition

Appeal upheld. Magistrate's decision set aside. Matter remitted to Local Court for redetermination. Defendant to pay plaintiff's costs.

Orders

  • The appeal is upheld.
  • The decision of Magistrate Forbes dated 30 August 2002 is set aside.