Symons v Schiffmann [1915] HCA 65; (1915) 20 CLR 277 (22 September 1915)

HIGH COURT OF AUSTRALIA

Symons Appellant; and Schiffmann Respondent.

H C of A

On appeal from a Court of General Sessions of Victoria.

22 September 1915

Griffith C.J., Gavan Duffy and Rich JJ.

Bryant (with him Owen Dixon), for the defendant Schiffmann.

Starke (with him Eager), for the informant Symons.

Bryant was not called upon to reply.

The judgment of the Court was delivered by

Griffith C.J.

Upon the evidence in this case (which, quite improperly, sets out evidence at length, instead of setting out the facts found by the Chairman of the Court of General Sessions) we think that he was not bound to come to the conclusion that the defendant here interfered with goods subject to the control of the Customs. The facts stated by Mr. Starke, and which we assume to have been accurately stated, tended to support that charge. They tended, if accepted by the learned Chairman, to show that the goods were imported into Australia, that duty was not paid upon them, and that about a month after their importation they were found in the possession of the defendant. That is as far as the evidence went. Upon it there may be found ground for suspicion as to the manner in which the goods came into the defendant's possession, but we cannot say that the learned Chairman was bound to come to the conclusion that the defendant interfered with them while under the control of the Customs.

Reliance was then placed upon sec. 255 of the Customs Act, which provides that "in every Customs prosecution the averment of the prosecutor or plaintiff contained in the information declaration or claim shall be deemed to be proved in the absence of proof to the contrary."

This Court held in Adelaide Steamship Co. v. The King[1] that the term "averment" must be confined to pure allegations of fact, and does not include an allegation of a conclusion of mixed law and fact, and further that that section has no application where the prosecutor elects to put the actual facts before the Court.

The allegation that a man has interfered with goods subject to the control of the Customs is an allegation of mixed law and fact, namely, that certain facts not stated amount in law to interference, and that certain other facts, also not stated, show that the goods specified were in point of law subject to the control of the Customs within the meaning of sec. 33. The facts in this case were put before the Court, and failed to satisfy the learned Chairman of the defendant's guilt.

On both grounds, therefore, sec. 255 has no application. We cannot find the facts for the Chairman, or express any opinion as to what he ought to have found. This proceeding therefore fails. We express no opinion as to the other points argued. Treating the case as an appeal, but without expressing any opinion as to whether it is or is not properly brought as an appeal, we order that it be dismissed with costs.

Appeal dismissed with costs.

Solicitor, for the informant, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitor, for the defendant, W. G. Manchester.

[1] [1912] HCA 58; 15 C.L.R., 65, at p. 102.