Schiffmann v Whitton

This case concerned an appeal to the High Court of Australia from a decision of the Court of General Sessions of Victoria, which had dismissed an appeal against a conviction by a Court of Petty Sessions. The appellant, Leonard Peter Schiffmann, was convicted of interfering with goods subject to the control of the Customs without authority, contrary to the *Customs Act 1901-1914*. The prosecution relied on section 255 of the Act, which provides that averments in the information are deemed proved in the absence of contrary proof, and called no evidence.

The central legal issue before the High Court was whether the numerous allegations prefacing the information, which detailed matters of evidence, constituted "averments" within the meaning of section 255 of the *Customs Act 1901-1914*. The appellant argued that these were not true averments, and therefore the prosecution could not rely on section 255 to prove its case without adducing evidence.

The High Court, following its previous decisions in *Adelaide Steamship Co. Ltd. v. The King* and *Symons v. Schiffmann*, held that the allegations in question were not "averments" as contemplated by section 255. The Court reasoned that section 255 was intended to apply to averments of fact, not to statements of evidence from which guilt might be inferred. The inclusion of detailed evidentiary matters in the information, even if following the language of the statute creating the offence, did not alter their character or bring them within the scope of the deeming provision. Consequently, in the absence of any evidence presented by the prosecution, the conviction was deemed improper.

The Court allowed the appeal, set aside the conviction, and ordered the respondent to pay the costs of the appeal and the proceedings before the Magistrates. While acknowledging the importance of the question and the potential for the prior decisions to be reconsidered by a Full Bench, the Court declined to adjourn the matter, finding the appellant entitled to succeed based on the existing law.