Chief Executive Officer of Customs v El Hajje

The Chief Executive Officer of Customs appealed to the High Court of Australia against a decision of the Court of Appeal of the Supreme Court of Victoria. The dispute concerned the interpretation and application of the averment provisions within the *Excise Act 1901* (Cth), specifically in relation to an offence of possessing manufactured excisable goods without lawful authority. The respondent had been found in possession of a quantity of cut tobacco, and the prosecution relied on averments made under the Act to establish key elements of the offence.

The High Court was required to determine whether the averment provisions of the *Excise Act 1901* (Cth), particularly s 144(1), could be used to establish the ultimate fact in issue in an excise prosecution, namely whether the goods in the respondent's possession were "manufactured or partly manufactured goods". The Court also considered the broader implications of such provisions for the accusatorial nature of criminal proceedings and the burden of proof.

The Court reasoned that the averment provisions, as introduced and interpreted in previous High Court decisions, serve as prima facie evidence of the matters averred, without altering the ultimate burden of proof. However, they do shift the evidentiary and forensic onus onto the defendant, potentially placing a significant burden on them. The Court clarified that these provisions do not distinguish between ultimate facts in issue and other facts, and that averments of mixed fact and law are treated as prima facie evidence of the fact only. The Court found that the primary judge had erred in his application of these principles.

The appeal was allowed with costs. The orders of the Court of Appeal of the Supreme Court of Victoria were set aside, and the matter was remitted to that Court for further hearing and determination.