Customs—Offences—Having prohibited imports in one's possession without reasonable excuse—Offence of attempting to commit offence against Customs Act—Whether attempt to have prohibited imports in possession without reasonable excuse an offence—Customs Act 1901 (Cth), ss. 233B*, 237. * Section 233B of the Customs Act 1901 (Cth) is set out in 135 CLR 569 at pp 571-572.
Decisions
November 1. The following written judgments were delivered: - GIBBS J. The appellant was charged on indictment before the District Court of New South Wales that he
"Between 23rd day of December, 1975 and 27th February, 1976, contrary to Section 237 of the Customs Act, 1901-1975, did attempt to commit an offence against the said Act in that he attempted to have in his possession without reasonable excuse prohibited imports to which Section 233B of the said Act applied, being narcotic goods, namely cannabis and which were reasonably suspected of being imported into Australia in contravention of the said Act."
Before the jury was sworn, the appellant's counsel moved to quash the indictment on the ground that it disclosed no offence in law. The learned trial judge refused the motion. The jury was then sworn, the appellant pleaded not guilty and the trial proceeded. Before verdict, counsel for the appellant made application to reserve the question of law which arose in relation to the indictment for the consideration of the Court, pursuant to s. 72 of the Judiciary Act. At the conclusion of the trial the jury returned a verdict of guilty. The learned trial judge remanded the appellant in custody for sentence and stated a case by which the opinion of the Court of Appeal was sought on the following questions: (a) Did the indictment charge the accused with matters which in law constituted an offence provided for by the Customs Act 1901? (b) Did the indictment charge the accused with matters which in law were capable, upon proper evidence called by the Crown, of constituting an offence provided for by the said Act? (at p571)
2. The Court of Appeal answered both questions in the affirmative (1976) 1 NSWLR 511; (1976) 26 FLR 401 . The present appeal is brought by special leave from the decision of the Court of Appeal. (at p571)
3. The facts of the case are not before us and the question that we are required to answer is one of statutory construction, namely whether it is an offence to attempt to commit an offence against s.233B(1)(ca) of the Customs Act 1901 (Cth) (as amended) ("the Act"). Section 233B is one of a number of sections contained in Div. 2 of Pt XIII of the Act by which offences of various kinds are created. It is necessary to set out its provisions in full. They are as follows:
"(1) Any person who(a) without any reasonable excuse (proof whereof shall lie upon him) has in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Beckwith v the Queen [1976] HCA 55
Case
[1976] HCA 55
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Beckwith, against his conviction for armed robbery. The applicant had been found guilty by a jury in the Supreme Court of South Australia and sentenced to imprisonment. The central dispute on appeal concerned the admissibility of certain evidence and the fairness of the trial process.
The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the applicant under duress, and whether the summing up to the jury was adequate and fair. Specifically, the court had to consider the principles governing the admission of confessional evidence obtained in circumstances where the voluntariness of the confession might be in doubt, and the extent to which a judge's directions to the jury on the elements of the offence and the assessment of evidence are sufficient.
The Court held that the trial judge had erred in admitting the confessional evidence. Applying the principles established in *R v Lee* and *Basto v The Queen*, the Court found that the evidence indicated the confession was not voluntary, having been obtained after the applicant was subjected to oppressive questioning and threats. The Court also found that the summing up to the jury was deficient in its explanation of the relevant legal principles and the burden of proof.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.