Schiffmann v Whitton [1916] HCA 60; (1916) 22 CLR 142 (17 October 1916)

HIGH COURT OF AUSTRALIA

Schiffmann Defendant, Appellant; and Whitton Informant, Respondent.

H C of A

Appeal from a Court of General Sessions of Victoria.

17 October 1916

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

Bryant, for the appellant.

Starke (with him Eager), for the respondent.

Bryant, in reply.

Griffith C.J.

We are all agreed that we are bound by the decisions in Adelaide Steamship Co. Ltd. v. The King and Symons v. Schiffmann, and we do not think that the prefacing to an information which follows the language of the Statute creating the offence of a number of allegations of matters of evidence makes any difference in its legal effect. We do not think that that is what is meant by the term "averment" in sec. 255 of the Customs Act. That being so, on the authority of those cases the appellant is entitled to succeed.

But it is said that those decisions may be reviewed. I venture to say for myself, after the arguments I have heard, that it is fitting that they should be reviewed in a proper case. On the other hand, here is an appellant who comes to this Court and asks for a ruling to which, on the law as it has been twice declared, he is entitled. It is now asked that this right should be denied to him on the suggestion that a Full Bench might overrule the decisions on which he relies, and that the case should be adjourned for argument before a Full Bench accordingly. That is a matter of discretion. Personally I do not think it right to allow a prosecutor to mend his hand after judgment. The proceedings in this case were taken in a particular form in order to raise a particular question, and the respondent, having failed on that question, now seeks to raise quite a different question. As a matter of discretior I do not think that this should be allowed.

Barton J.

I am of the same opinion.

Gavan Duffy J.

I think that this case is within Adelaide Steamship Co. Ltd. v. The King[1] and Symons v. Schiffmann[2], which followed it, and that the Court as at present constituted is bound by those decisions. It seems to me that this is a very suitable opportunity to have them reconsidered, and I think that they should be reconsidered by a Full Bench; but, as the Chief Justice and my brother Barton are of a different opinion, I suppose that opinion must prevail.

Rich J.

We are no doubt bound by the previous decisions, but, as the question is one of great importance in the administration of the Customs Act and is raised in this case in a neat form, it should be referred to the Full Bench, subject to the payment of all costs—a condition to which Mr. Starke has offered to submit.

Appeal allowed. Conviction set aside. Respondent to pay costs of appeal and of proceedings before the Magistrates.

Solicitor for the appellant, W. G. Manchester.

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

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

[2] [1915] HCA 65; 20 C.L.R., 277.