Brady v Thornton [1947] HCA 29

H. C. or A.

1947. Ss Sypyry,

Aug. 18, 19.

Latham 0.5. Rieh, Starke, Dixon and

MeTiernan JJ.

HIGH COURT [1947.

[HIGH COURT OF AUSTRALIA.]

BRADY : 5 Z ; a > : . APPELLANT; INFORMANT, 4 AND F THORNTON : 5 é 2 ; K Responpent. DEFENDANT,

Panation Offence —Prosecition—Hvidente Return' af income —Underatatenientse income —Proof—Allegations in information—Averments—Sufficiency—Mized law and fact—Income Tax Assessment Act 1936-1946 (No. 27 of 1936—No. 6 of 1946), s. 243 (1), (2) (b). ;:

An information laid under the Income Tax Assessment Act 1936-1946, — contained allegations that "the defendant . . . did make a retum of income . . . which said return was false in a particular to wit, the amount of £739 returned by the said defendant therein as total gross income from

his business of hairdresser and tobacconist was understated by an amount 4 of not less than £958."

Hald, that the allegations were averments of fact and not of law (Latham — C.J. and Dixon J. doubting as to the allegation that the amount of £958 was — " income ") and, in the absence of any further evidence, the defendant should be convicted. z

'The word " averment " as used in s. 243 (1) of the Income Tax Assessment | Act 1936-1946, means allegation contained in the information, complaint, declaration, or claim as the case may be.

Case Sravep. An information laid. by William Malachy Brady alleged that Brady was authorized to institute the proceedings in the name of. and for and on behalf of the Deputy Commissioner of Taxation in the State of New South Wales, who charged that on or about 31st August 1942, at Sydney, in the said State, one Nicholas Thornton, hairdresser and tobacconist of 144 Liverpool Street, Paddington, "did make a return of income of the twelve months ended 30th June 1942, which said return was false in a particular to wit, the