Irving v Nishimura

This case involved an appeal to the High Court of Australia from a decision of a Police Magistrate who had dismissed an information laid under section 233 of the *Customs Act 1901* (Cth). The appellant, the Collector of Customs for Queensland, had charged the respondents with unlawfully having in their possession goods, specifically opium, the importation of which was prohibited. The magistrate dismissed the charge, finding no proof of possession by the respondents, partly due to concerns about the integrity of the goods while stored in the Customs shed.

The legal issues before the High Court were whether the magistrate had erred in finding no proof of possession, whether the information disclosed a valid offence, and crucially, whether there was sufficient evidence to establish that the respondents knew the tubs they claimed contained opium. The respondents also contended that section 233 of the *Customs Act* was beyond the legislative competence of the Commonwealth Parliament if interpreted literally.

Griffith C.J. reasoned that the magistrate's concern about tampering was irrelevant to the question of possession, and that there was ample evidence of joint possession of the tubs and their contents by both respondents. He also found that the information sufficiently disclosed an offence under section 250 of the Act. Regarding the knowledge element, Griffith C.J. held that while "unlawfully" implies knowledge, in the context of importing goods, the act of importation itself, coupled with claiming the goods as one's own, constitutes sufficient prima facie evidence that the importer knows the contents. He further clarified that section 233 must be construed as relating to matters within the Commonwealth Parliament's competence, specifically concerning the importation and exportation of goods, thereby addressing the constitutional challenge.

The High Court allowed the appeal, finding that the magistrate was not bound to dismiss the case and that the matter should be remitted for determination on its merits. The respondents were ordered to pay the costs of the appeal.